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Full text of "The casuist; a collection of cases in moral and pastoral theology"



IDuqufsne^niuevsityi 




Gift of 
Rt. Rev. Msgr. Joseph F. Smith, V.G. 



CORRECTIONS 

Made Necessary by the New Code of Canon Law 

IN 

VOLUME IV 

OF 

THE CASUIST 

Compiled by the Very Rev. Stanislaus Woywod, O.F.M. 



Case VII. — The New Code decides this case in Canon 864 where it 
is stated that one who received Holy Communion in the morning and should 
get into danger of death on the same day is to be advised to receive again. 

Case X, page 48. — The mother procuring abortion does not escape the 
excommunication as the New Code states expHcitly in Canon 2350. 

Case XIX, page 85. — The New Code in Canon 93 rules that a person 
under twenty-one years of age necessarily shares the domicile of the one in 
whose charge he is, parent or guardian, but he may at the same time also 
have a quasi-domicile which consists of actual residence in a place with 
the intention of staying the greater part of the year or having actually stayed 
over half a year in a place. Canon 92. The domicile of any person of 
age is lost by leaving said domicile with the intention not to return there 
any more. Canon 95. If the parties in case XIX were of age and had 
left the house of their parents with the intention not to take up their re- 
sidence any more in their parents' house, they have lost the domicile and 
cannot claim the pastor of their parents as their own. This is clear from 
the Canons quoted which do not demand a formal renunciation of the 
domicile. 

Case XLVIII, page 185.— The New Code, in Canon 947, while 
allowing in case of necessity one einointing on the forehead with the shorter 
form, demands that the other anointings be supplied right after if the person 
still lives. 

1 



Case LXI. — The question of supplied jurisdiction in errore communi 
is answered by Canon 209 of the Code which states: "In common error or 
in a positive and probable doubt both juris and facii the Church supplies 
jurisdiction for the external as well as the internal forum." As the reader 
v/ill notice, this new law makes it unnecessary to pay attention to the titulus 
coloraius or any other. 

Case LXIII. — Canon 867 states that on Holy Saturday Holy Com- 
munion cannot be given except at the Holy Mass or immediately afterwards. 

Case LXXXII, page 321 ad 2.— The Code in Canon 874 indirectly 
denies the right of pastors to delegate jurisdiction for the hearing of the 
confessions of their parishioners. It may also be noted here that the Code 
drops the approbation demanded by the Council of Trent and speaks only 
of jurisdiction for the hearing of confessions. 



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I 



THE CASUIST 

A Collection of Cases in 

Moral and Pastoral 

Theology 




VOLUxME IV 



New York 
Joseph F. Wagner 



Yt^rb- 



^tA- 



(L 3 



Ipiibil «©b#tat 



Rev. REMIGIUS LAFORT, D.D. 

Censor 



imprimatur 



JOHN CARDINAL FARLEY 

Archbishop of New York 



New York, September 12, 1912 



Copyright, 1912, by Joseph F. V/agner, New York 



CONTENTS 



II. 
III. 

IV. 

V. 

VI. 

VII. 

VIII. 

IX. 

X. 

XI. 

XII. 

XIII. 

XIV. 

XV. 

XVI. 

XVII. 

XVIII. 

XIX. 

XX. 

XXI. 

XXII. 

XXIII. 

XXIV. 

XXV. 

XXVI. 



XXVII. 
XXVIII. 



XXIX. 
XXX. 

XXXI. 

XXXII. 
XXXIII. 
XXXIV. 

XXXV. 

XXXVI. 

XXXVII. 

X^CXVIII. 
XXXIX. 



PAGE 

On Deprivation of the Title of Ordination and the Support of 

Erring Priests i 

Fasting Before Holy Conununion 7 

Power of the State to Make Diriment Impediments 12 

Restitution to a Foundling Asylum 18 

ScandaLby Immodesty in Dress 22 

Law of Abstinence for United States Soldiers 28 

Receiving Holy Communion Twice on the Same Day 34 

De Procuraiido Ahortii 38 

A Minor's Obligation to Restore _ 44 

Excommunication on Account of Abortion 48 

The Law of Abstaining from Flesh Meat 53 

Some Liturgical Questions Concerning Holy Mass 56 

The Dispensation Super Impedimento Consanguinitalis 59 

Is It Lawful to Make Another Person Drunk ? 62 

Impediment of Crime 66 

Christian Burial of Masons 7i 

The Marriage Impediment of Error 75 

What Risk JMust a Priest Take to Give the Last Sacraments ? . . . . 79 

A Pastor's Jiuisdiction Regarding Marriage 84 

The Niunber of Sins Caused by Envy 88 

Executing the Provisions of a Will 93 

Does the Effect of Extreme Unction Revive ? 97 

Servile Work on Sunday i°2 

The Rite of the Nuptial Blessing _ io5 

A Case of Conscience Regardmg Conjcssio Externa Fidei 107 

Is it a Grievous Sin for Innkeepers to Supply Spirituous Liquors to 
Customers Who are Drinking to Excess or Wlio are Ahready 

Drunk? -11° 

Is a Man Bound to Make Compensation for Not Havmg Prevented 

Some Injurv to His Neighbor ? 116 

What Are the Obligations of a Person Who Has Disposed of an 
Article that He Found Without Making Any Attempt to Dis- 
cover the Owner ? ^^^^ 

Remedium IlUcitinn .••••• 'A' ' ' ^'^ 

The Seal of the Confessional Must be Obser\'ed even m the Con- 
fessional Itself • • • ■ ■ '^-■^ 

The Administration of the Viaticum in Cases of Cancer of the 

Esophagus (Gullet) i-S 

A Questionable Penance ^35 

A " Salted " Gold Mine 136 

Never Refuse to Hear a Confession _• • • 138 

The Confession of a Woman Who Has, on Her Own Authonty, 

Left Her Husband ......... 140 

Case of a Marriage Rendered Invalid by Failure to Apply for a 

Dispensation at the Proper Time ^4^ 

The Seal of the Confessional i4i> 

Partiality in Bisliop's Appointment Not Simony i53 

A Mistake Regarding jNIass Intention ^50 



/VOl^Vo 



JUL 



^I 



iv CONTENTS 

PAGE 

XL. The Meaning of the Clause "Cnm Gram (et Diulurna) Panitenlia 

Salutari " in Marriage Dispensations 15S 

XLI. Sham Bidding at an Auction 160 

XLII. May a Relic be Venerated if there is any Doubt Regarding its 

Authenticity ? 162 

XLIII. Protestant Baptism 164. 

XLIV. The Sense of the Words " Pure Virgin " in the Constitution of a 

Religious Order 1 74 

XLV. Matrimonial Consent 176 

XLVI. Deposition of Witnesses to a Will 1 78 

XL VII. Mistaken Adlicrence to the Rule an Obstacle to Daily Communion 

in Convents 180 

XL VIII. E.xtreme Unction in Casu Necessitatis 184 

XLIX. Release from a Vow 188 

L. The Conditions for Gaining an Indulgence 1S9 

LI. Is it Necessary to be in a State of Grace in Order to Gain Indul- 
gences for the Souls in Purgatory ? 192 

LII. Hearing Confessions in Foreign Languages 194 

LIII. The Obligations to Hear Stipend Masses. 199 

LIV. Binatio 207 

LV. Is Daily Communion Allowed in Spite of Innumerable Venial Sins ? 210 

LVI. Revalidation of Marriage After an Arbitrary Separation 216 

LVII. Secret Compensation Justified by a Promise 217 

LVIII. Delegation for the Parochus Proprius of Those About to be Married 220 

LIX. Wine Without Water at Mass 226 

LX. Negotialio Forbidden to the Clergy 229 

LXI. Jurisdidio Suppleta 233 

LXII. Seal of the Confessional in Court 235 

LXIII. Communion on Holy Saturday 238 

LXIV. Confessions of the Clergy 240 

LXV. When Does Contrition Suffice Ad Sacra Instead of Confession ? 244 

LXVI. A New Operation in Childbirth 249 

LXVII. Scrupulosity 251 

LXVIII. Melus Reverentialis as Impediment 253 

LXIX. A Protestant Godmother 257 

LXX. Marriage of a Woman Pregnant by Another Man 259 

LXXI. Parochial Mass or Sick Call 262 

LJIXII. Revalidation of an Invalid Marriage 266 

LXXIII. Is It Possible to Hear the Mass of Obligation \\Tiile Making Con- 
fession at the Same Time ? 268 

LXXIV. Are Preparation and Thanksgiving Necessary Conditions for Daily 

Commmiion ? 276 

LXXV. Confession Before Celebration 281 

LXXVI. Mistaken Idea of the Sin of Presumption 286 

LXXVII. False Witness in a Court of Justice 289 

Lr-Di^VIII. Breach of Contract 294 

LXXIX. Syphilis in Marriage 296 

L;?CXX. Conversion from the Eastern Schism to the Catholic Church 303 

LrOCXI. Irregularities of an Ap>ost^.te 309 

LXXTvII. Jurisdidio dubia 313 

LX>DCIII. Dispensation from the Obligation to Communicate Fasting 323 

LXXTvIV. Can Every Jev/ Be Baptized ? 326 

LXXXV. Baptism of Children the OlTspring of Civil Marriages 328 

LXXXVI. Protestants and the Commandments of the Church 330 

LXXXVII. Cremation ^32 



THE CASUIST. 



L ON DEPRIVATION OF THE TITLE OF ORDINATION 
AND THE SUPPORT OF ERRING PRIESTS 

The Vicar-General of Gran, by order of the Most Eminent Arch- 
bishop of that archdiocese, made the following exposition to the 
S. Cong-regation of the Council: 

"The priests in the dioceses of Hungary are ordained to the title 
of their respective dioceses, owing to the fact that the titles enumer- 
ated in Canon Law cannot be employed in Hungary. The Most 
Eminent Archbishop of Gran applied for approbation for this title, 
but it was not granted, and instead he obtained faculty for dis- 
pensing for five years from the legitimate canonical titles so as to 
enable him to ordain the priests of the Archdiocese of Gran for the 
title of this archdiocese. The title of the diocese, according to the 
interpretation prevailing in Hungary, confers on the priests or- 
dained with it the right to a pension or to support from the diocese 
in case of incapacity for the exercise of pastoral offices. For this 
object the dioceses of Hungary possess special foundations and in- 
stitutes. The incardination of priests of another diocese gives the 
same right as the diocesan title to support from the diocese. 

"Now this diocesan title gives rise to a question of great impor- 
tance with regard to the discipline of the clergy, viz., as to whether 
priests who have been excommunicated and convicted of atrocious 
crimes by due process of law can, through the penalty of deposition 
from the diocesan title, as now used by dispensation in the Arch- 



2 THE CASUIST— VOL. IV 

diocese of Gran, be deprived as absolutely as those who have been 
deprived, as a punishment, of the canonical title of a benefice. For 
it is to be feared that unhappy priests of this kind, after living a 
merely civil life and often in distant countries, might, when broken 
down in health and reduced to misery, allege the diocesan title to 
claim support from the archdiocese, if they cannot be entirely de- 
prived of the diocesan title. And this would assuredly be no small 
incentive to bad priests to plunge into a dissolute life." 

The ordinary, therefore, concludes by begging the S. Congrega- 
tion "to be kind enough to solve this question, and enlighten me 
with regard to the application of the penalty of deprivation of the 
title." 

Synopsis of the Question. — Total deposition (for there is also 
partial deposition), also known as simple and absolute, which is 
under discussion here, perpetually deprives the cleric, upon whom 
it is inflicted as a punishment, of his order (though not, of course, 
of the character) and of all ecclesiastical offices and benefices 
(Schmalz, V, tit. XXXVII, no. 135 ; Reiff. V, eod. t., no. 33 ; Bened. 
XIV, de Syn., 1. IX, c. VI, no. 3). From this general deprivation 
of offices and benefices is not excluded the benefice which a deposed 
cleric has acquired by the title of his ordination. For the law makes 
no such exception and "where law does not distinguish neither must 
we distinguish" (/. 9 in tin. de juris et fact, ignor.; c. 6, and 
pen. de majorit.). This is all the more evident from the fact that 
deprivation of such a benefice can be inflicted for crimes less grave 
than those for which total deposition is inflicted. On this point, see 
Monacelli, tit. XIII, form. 3, no. 22 : "Clerics ordained to the title 
of a benefice, if they commit crime, or do not observe the law of 
residence, or otherwise act wrongly, may servatis servandis, be de- 
prived of their benefices, notwithstanding that they have been or- 



ON DEPRIVATION OF THE TITLE OF ORDINATION 3 

dained to the title of these benefices, or that this title has been used 
instead of that of patrimony, as has frequently been declared by the 
S. Congregation of the Council, and especially in Firmana of May 
18, 1665 (lib. 24 decret., page 496) ; Romana of March 18, 1684 
(lib. 34 decret., page 70), and Vercell. (of Dec. 15, 1690). And 
with Monacelli agree Lucidi, de Visit., c. Ill, Sec. 12 and Wernz, 
Jus Decret., torn. II, p. 136. 

Now as the title of the diocese, which is used in Hungary by in- 
dult of the Holy See, takes the place of tlie title of benefice which, 
according to Trent sess. 21, Ch. 2, de reform., is a true and principal 
title of ordination, and as said title is purely ecclesiastical, I have 
no doubt but that the title of diocese is, like the title of benefice, lost 
by the punishment of deposition. 

But it is an established principle of law that deposition does not 
deprive of the privileges fori et canonis, and that the deposed cleric 
remains in the clerical state. "Hence," as Layman says, lib. I, 
trac. V, p. Ill, c. V, no. 2, "the Church is bound to support a de- 
posed cleric and one suspended from his benefice [Layman is speak- 
ing here of a cleric suspended ad modum poenae vindicativae and 
not ad modum censurae] lest to the shame of the clergy he be com- 
pelled to beg." The same teaching is given by Abb., c. pastoralis. 
Sec. verum, no. 16, de appellat., Avila, p. 4, dub. I, conclus. 3, and 
Suarez, who also explains how it is that, as concerns the right to sup- 
port, the position of a deposed cleric is better than that of a cleric 
suspended per censurem from his benefice: "The doctors," he 
says, "make this distinction, between the cleric absolutely deposed or 
suspended from his benefice on account of crime, and the one who 
is under censure on account of contumacy, that the former must in 
case of indigence be supported from the fruits of the benefice 
{erg. ex c. Studeant, distinct. 50) lest he be compelled to beg, since 



4 THE CASUIST— VOL. IV 

it is not in his power to hold a benefice or the right to ecclesiastical 
revenues; while in the case of one thus punished on account of 
present contumacy the Giurch is not bound to support him out 
of its property, even if he be in indigence and compelled to beg, for 
he deserves all this by reason of his contumacy, and the disgrace 
resulting from it falls on his own person rather than on the clergy ; 
and all this is permitted for the greater good of the Church, viz., 
the correction . of contumacy" (Suarez, de cens., disp. 13, sect. 2, 
n. 14). 

Hence, in the present case the deposed cleric on the one hand is 
deprived of the title of diocese with which he was promoted to 
orders, but on the other hand the diocese is bound to support him, if 
he is in indigence, lest he inflict disgrace on his state by being 
compelled to beg; just as a cleric ordained to the title of a benefice 
who, by incurring the penalty of deposition, loses his benefice, but 
who, for the reason already given, must be supplied with the necessi- 
ties of life from the revenues of the benefice or otherwise from the 
property of the Church. 

It might be objected that it is useless to deprive a deposed cleric 
of the title of diocese, with its right to support, if the diocese is 
afterward obliged to support him by reason of the clerical state 
which he still retains. For thus the same thing is both taken away 
and given to him. 

But this is not correct. For the maintenance due to a cleric from 
the title of ordination (in the present case from the title of diocese) 
is more considerable, both by reason of the specific obligation and 
of the dignity and quantity, than the support given to a cleric, de- 
posed for crime and reduced to misery, as a kind of alms, on the 
ground that he has not yet been expelled from the clergy. 

But what if a cleric, unchastened by his deposition, continues in 



ON DEPRIVATION OF THE TITLE OF ORDINATION 5 

the slough of offense? Is he to be perpetually suppoi-ted from the 
propert}' of the Church? 

The canons in this case decree that a deposed cleric "if he has 
been incorrigible is to be excommunicated; then, his contumacy 
increasing, he is to be anathematized, and if after this he is still in 
contempt and reaches the extreme stage of evil, as the Qiurch can 
do nothing more with him, he is to be punished by the secular arm" 
(C. 10 De Judiciis) ; in otlier words, if the deposition has proved 
of no avail, the process of actual degradation can be resorted to, 
which, among other effects, imports that the cleric is deprived of 
the privilege fori et canonis, ejected from the clerical state, and de- 
prived of all ecclesiastical provision (Schmalz., V, XXXVI, n. 139; 
Reiff. eod. lib, et tit., n. 32 ; S. Alphon. VII, c. Ill, n. 324, and other 
Doctors passim), including certainly support in case of destitution. 

But as it is not always expedient, especially in our times, to 
degrade a deposed cleric, in these cases there is nothing to hinder 
a bishop from depriving such a cleric of all ecclesiastical subsidy 
by the passing of a second sentence, even in contumacy, as is 
taught by La}Tnan, and Abbate in the passages cited, and by Suarez 
in disp. 27, n. 5 ; the same thing is evident from the rules of law : 
"The greater always contains the less," and "there is no doubt but 
that the part is contained in the whole" {De reg. jur. in 6 reg. 
35,80). 

For since a bishop can deprive a cleric cumulatively of a number 
of things by degradation, why cannot he deprive him of a part of 
them only when there is a sufficient cause? 

Besides, if the deposed cleric is also excommunicated (as seems 
to be the case with the priests concerned in the present question) he 
loses ipso facto all ecclesiastical aids by reason of the censure, as 
long as he perseveres in his contumacy, according to the opinion of 



6 THE CASUIST— VOL. IV 

Suarez, with others (see S. Alph., Hb. Ill, n. 670), based on the 
argument from c. Pastoralls, and veriim, de Appellat., which says: 
"Ecclesiastical revenues are justly withdrawn from him to whom 
the communion of the Church is denied," or such a one may justly 
be deprived of them by judicial sentence, according to file more 
common opinion (Schmalz., V, 39, 158; D'Annibale, I, and 365, 

n. ZZ)- 

After this, that the proposed question may be rightly solved, it 
is asked : Whether priests, who have been excommunicated and 
found guilty of atrocious crimes by due process of law, can, by the 
penalty of deposition from the title of diocese, as this is at present 
used by apostolic dispensation in the Archdiocese of Gran, be as 
absolutely deprived as those who are deprived by the penalty of 
deposition from the canonical title of benefice? 

The Most Eminent Fathers of the Congregation of the Council, 
in the general meeting held on June 11, 1910, decided to answer 
the proposed question: In the affirmative, saving, hozvever, the 
dispositions of the law with regard to support for those zvho are 
really indigent. 

Our Most Holy Father Pope Pius X. in an audience granted on 
the 1 2th of the same month of June to the undersigned secretary, 
was pleased to approve and confirm the sentence of the Most Emi- 
nent Fathers. 

C. Card. Gennari, Prefect. 
Basilius Pompili, Secretary. 



II. FASTING BEFORE HOLY COMMUNION 

Is is lawful for a person to receive holy Communion when there 
exists a well-founded doubt as to whether the person has broken the 
fast required for holy Communion? 

Answer. — Theologians are not agreed as to whether it is lawful 
or not. Rigorists maintain that under no circumstances is it 
lawful to receive holy Communion, unless one is sure that the fast 
has not been broken since midnight preceding the holy Communion. 
This is according to their general principle: In duhio, qicod tutms 
est, tenendiim. This principle, of course, is denied by all those 
who adopt probabilism as a system of morals or a norm of moral 
conduct. But the probabilists themselves do not agree as to 
whether it is lawful to receive holy Communion when one is in 
doubt as to whether the fast has been broken. For the sake of 
clearness, it is necessary to premise that the doubt concerning the 
fast may arise either from the fact that one has partaken of food 
or drink, but is in doubt as to whether it was before or after mid- 
night, or one may be sure that one was fasting at midnight, but 
doubts whether he broke the fast after midnight. The principle on 
which the probabilists solve the case is : Melior est conditio possi- 
dentis. But they do not agree in the application of the principle. 
Some maintain that when doubt exists about the fast required for 
holy Communion, then the law forbidding holy Communion to the 
non-fasting is in possession and makes the Communion under the 
circumstances unlawful. Others, on the contrary, maintain that 
when one is in doubt as to whether one is fasting or not, such an one 



8 THE CASUIST— VOL. IV 

is in possession as against the law, because the law is doubtful, that 
is to say, it is doubtful whether the law applies to this particular 
case, making the Communion illicit. Owing to this different appli- 
cation of the principle meUor est conditio possedeniis, we have 
three different opinions of the theologians belonging to the prob- 
abilistic school about this matter. 

The first opinion holds that in either case it is lawful to receive 
holy Communion. That is to say, whether you are sure of the 
fact that you partook of food or drink, and doubt only concerning 
the time, namely, whether it was before or after midnight that you 
partook of the same, or whether you are sure that you were fasting 
at midnight and are in doubt whether you ate anything after that 
time or not, in either case you may tnta conscientia approach the 
holy table. Sporer, among others, holds this opinion, de sacrif. 
Missae, VL, 474, and justifies it in this manner: "The right that I 
have to receive holy Communion cannot be rendered uncertain by an 
uncertain or doubtful fact; but the fact that I broke my fast is 
doubtful. To prove the major, it is only necessary to recall that 
in law facts are not presumed, but must be proven. The precept to 
receive holy Communion fasting is a prohibition. The prohibition 
must be established by fact, that is, unless you can prove beyond 
reasonable doubt that you have broken your fast after midnight, 
there exists no prohibition against yom- receiving holy Commun- 
ion. St. Alphonsus thinks well of this manner of reasoning (de 
conscieiu 38). 

The second opinion holds that it is unlawful to receive holy Com- 
munion, unless one is sure that one is fasting. No one must re- 
ceive holy Communion, unless he knows himself to be worthy. Now 
if one does not know for certain whether he is fasting or not, he 
does not know whether he is worthy or not. Therefore let him prove 



FASTING BEFORE HOLY COMMUNION g 

himself worthy or else abstain. "Prohet autem seipsnni homo, et sic 
de pane illo edat" (I. Cor. xi, 28). 

This opinion maintains that we have no absolute right to receive 
holy Communion, but only a conditional right, conditional, namel}-, 
on our worthiness, and until we satisfy the condition and prove 
our worthiness, we have no right to holy Communion. As no one 
has the right to receive Holy Orders unless he can prove the justice 
of his claims to them, by proving his age and legitimate birth, so 
no one has a right to receive holy Communion, unless he can prove, 
among other things, that he is fasting. And as no injury is done 
to him who is refused Holy Orders, because he cannot prove his 
age or legitimate birth, so no injury is done to one who is refused 
holy Communion because he cannot prove, beyond doubt, that he 
is fasting. Thus the Salmanticenses, Sanchez, Bonacina, etc. 

The third opinion makes a distinction between the two cases of 
doubt and holds that in case you are sure that you were fasting at 
midnight, and only doubt whether afterwards you broke your fast, 
you may receive holy Communion ; whereas if you are sure you ate 
or drank something around midnight, but are not sure whether 
it was before or after midnight, in that case it is not lawful to re- 
ceive holy Communion. De Lugo makes this distinction, de Euch. 
disp. 15, sect. 5. In tine first case, says Lugo, it is lawful to re- 
ceive holy Communion, whenever you are sure that you were fast- 
ing at midnight, and only doubt whether afterwards you may have 
broken your fast, because every one has a right to receive holy 
Communion, unless he knows that he is prohibited. In this case 
the man is certain that he was fasting at midnight, therefore that 
at midnight he was worthy to receive, and it cannot be required of 
him now, r, g., in the morning, to prove that he is still worthy, 
because at midnight he was in possession of the right to receive 



lo THE CASUIST— VOL. IV 

holy Communion and it is unjust to dispossess him of that right in 
the morning, because he can no longer prove an undisputed title. 
Once lawfully and certainly in possession of a right or privilege, 
one remains in possession of the same until one's title to the right 
or privilege can be proven invalid beyond reasonable doubt. If 
such an one were refused holy Communion, it would be nothing 
else than ousting him from his rights or possessions on account of 
an unproven fact. This would be against all law, because in law 
facts are not presumed, but must be proven. In the second case, 
however, namely, where a person is sure that he ate or drank 
something around midnight, but is not able to determine whether it 
was before or after midnight, in this case, Lugo holds that it is 
not permitted to receive holy Communion, because since he knows 
that he ate something he is not in possession of the right to receive, 
as the man is in the other case, but rather is under the necessity of 
proving himself worthy to receive, which he is not able to do, as 
long as he is in doubt whether it was before or after midnight that 
he broke his fast. He must prove himself worthy, like one who 
wishes to receive Holy Orders, or, to be promoted to an eccle- 
siastical benefice. If he cannot prove himself worthy, you do him 
no injury by refusing to promote him. 

In conclusion, it must be said that at present theologians discard 
all distinctions and maintain that in any case of doubt about the 
fast one may receive holy Communion. 

St. Alphonsus says: "Lex prohibens communionem non videtur 
certa, et tamquam diihia non ohligat." de consc. 38. Again : "Utrum 
autem in dubio negativo, an transacta vel ne sit media nox, possit 
aliquis communicare? Valde probabilis est, imo forte probabilior 
sententia afdrmans, quia cum hoc praeceptum sit negativiim, de non 
acccndendo ad Eucharistiam post comestionem, non teneris ab illo 



FASTING BEFORE HOLY COMMUNION u 

absfinere, qiiamdiu non es certus, et eo magis si nullam habeas 
ratiojtem probabilem fe comcdisse; tunc enim adhuc manes in pos- 
sessione tuae libertatis." De Euch. lib. VI, tr. 5, 

Ita Gasparri, de sand. Euch. cap. IV, 447; Bucceroni, de Euch. 
tr. IV, 587; Noldin, de Euch, 150; Tanquerey, de Euch. 143. 



HL POWER OF THE STATE TO MAKE DIRIMENT 
IMPEDIMENTS 

A man named John, married a woman named Dora. Both were 
unbaptized at the time of their marriage. Besides, they were first 
cousins, and their marriage was against the law of the State where 
it took place. The laws of that State declare the marriages of first 
cousins null and void. In the course of time John and Dora 
separated and John took up with a Catholic woman whom he 
promised to marry as soon as he procured a divorce from Dora. 
The divorce has since been granted and the Catholic woman now 
desires to be married to John by a Catholic priest. Would it be 
lawful for a priest to marry them? 

Answer. — The first question which this case raises, is: Were 
John and Dora validly married before God, although the State 
declared their marriage null and void, ab initio, because they were 
first cousins? In other words, have the civil authorities power to 
make diriment impediments which will nullify, in foro conscientiae, 
marriages of the unbaptized? This is the first question that must 
be decided, before there can be any question of John marrying any- 
body, until Dora dies. 

The Catholic Church teaches that the State has no jurisdiction 
over the marriage of the baptized, quoad vinculum conjugate. The 
marriage contract of the baptized is a Sacrament, and as such has 
been committed by Christ to the care of His Church. Only the 
Church can legislate validly concerning the marriage bond of 
baptized persons. 



POWER OF THE STATE TO MAKE DIRIMENT IMPEDIMENTS 13 

The State may make laws affecting the civil effects of marriage 
in the case of baptized persons. The State can create civil disabili- 
ties to be incurred by baptized persons for the non-observance of 
certain legal formalities in contracting marriage. But the State 
has no povi^er whatsoever over the marriage bond, conjiigale vincu- 
lum, of baptized persons. Only the Church can make laws that 
affect the marriage bond, or vinculum, of the baptized. This has 
always been the teaching of the Catholic Church. 

But now the question arises, by what laws are the marriages of 
the unbaptized to be governed? For it is just as important that 
the marriages of the unbaptized should be governed by law, as it 
is that the marriages of the baptized should be so governed. Now 
the Church has no jurisdiction over the unbaptized. "Quid enim 
mihi de lis qui foris sunt, judicare," says St. Paul (I. Cor. v, 12). 
Of course the marriages of unbaptized, as well as the marriages 
of the baptized, are subject to the divine and the natural laws. But 
if the divine and the natural laws are not adequate for the regu- 
lating and controlling of marriage among baptized persons, how 
can they suffice for regulating and controlling the marriages of the 
unbaptized. The Church, herself, acknowledges the insufficiency 
of the divine and natural law in the matter of marriage between 
baptized persons, by creating many diriment impediments over and 
above those arising from the divine and natural law. And in so 
doing the Church acts wisely and for the best interests of human 
society. It is of the highest importance to society, for instance, 
that certain marriages should be declared not only unlawful, but 
also null and void from their inception. Such are, for instance, 
marriages without any legal or public formalities, marriages 
between very near blood relations, marriages between children, 
marriages procured through grave threats and fear. Such mar- 



14 THE CASUIST— VOL. IV. 

riages, as a rule, are very harmful to society and are rightly pro- 
hibited under pain of being null and void. The impediments placed 
in the way of such marriages are not found either in the divine or 
natural law. They are the creation of the Church, for the protec- 
tion of society. And it must be admitted that the Church in making 
them consulted the gravest interests of human society, because they 
are absolutely necessary for its welfare. 

But now, we ask, is it not equally necessary that the marriages 
of the unbaptized should be controlled in the same manner for the 
same good ends ? Is it not equally harmful to society for near blood 
relations to intermarry, whether they be baptized or unbaptized? 
Is it not equally harmful to society for children to marry or for 
public formalities to be omitted, whether the parties be baptized 
or unbaptized? And more especially in our own time, when 
the number of the unbaptized is increasing every day. But what 
authority can control the marriages of the unbaptized? Certainly 
not the Catholic Church. She has always disclaimed any jurisdic- 
tion over the unbaptized. If, therefore, the civil State has no 
jurisdiction, quoad vinculum conjugale, over the marriages of the 
unbaptized, there is no authority on earth that has jurisdiction over 
them. But to admit this would be equivalent to admitting that 
almighty God had not made sufficient provision for the good and 
adequate government of society. As this cannot be admitted, we 
are forced to the conclusion that the civil authorities have received 
from almighty God ample jurisdiction to regulate and control the 
marriages of the unbaptized, quoad vinculum, just as the Catholic 
Church has received adequate jurisdiction in the case of the bap- 
tized. The exercise of this power by the State must not be in 
contravention of the divine or natural law, nor against the dictates 
of reason. 



POWER OF THE STATE TO MAKE DIRIMENT IMPEDIMENTS 15 

This is one of the reasons why a great many modern theologians 
and canonists concede to the State the power to make diriment 
impediments nulHfying, in foro conscientiae, the marriages of the 
unbaptized ; the necessity on the one hand, of controlHng and regu- 
lating the marriages of the unbaptized for the protection of society, 
by more ample legislation than is contained in the divine and 
natural law, and the absence, on the other hand, of any authority 
competent to make such legislation, unless it be conceded that the 
civil State be such competent authority. 

Among the theologians who take this view of the matter are St. 
Thomas, Lessius, Schmalzgruber, Gasparri, D'Annibale, Cavagnis, 
Ballerini, Konings, Lehmkuhl and a host of others. Thus, for in- 
stance. Cardinal Gasparri considers this opinion not only very 
probable, but even certain : "Quam sententiam prohahiliorem, into 
certam hahemus, praesertim auctoritate sacrarum congregatiomim 
Romanarum" (de Mat i, 282). 

The constant and uniform practice of the Congregation of the 
Council, as well as of the Propaganda Fide, in deciding marriage 
cases among the peoples of the Far East, has always proceeded on 
the assumption that the State possesses legitimate authority to make 
diriment impediments in the case of marriage of its unbaptized 
citizens. In 1854 the following dtihium was proposed to the Con- 
gregation of the Council by the Vicar Apostolic of Yun-nan in 
China: It often happens in these parts, says the Vicar, that a 
younger brother marries the widow of his older brother, deceased, 
and afterwards becomes a Catholic. It is very difficult to separate 
them, both on account of the children born to them and the danger 
of turning them away from the faith. Yet such marriages seem 
to be invalid, because they are forbidden under severe penalties 
by the civil law, even under pain of death. Now, after their bap- 



i6 THE CASUIST-VOL. IV. 

tism, will it not suffice, for the revalidation of such marriages, thcl 
the parties to them renew their consent? 

To this the Congregation of the Council answered, September 20, 
1854, as follows: 

"Pracvia dispensatione disparitatis cuUus, et primi affinitatis 
gradus per facidtates, quibiis missionarii gaudent, consensnin esse 
renovandiim." 

This answer supposes that the civil impediment, forbidding such 
marriages, did, in fact, render the marriage, from its inception, 
null and void. 

The Propaganda, in 1631, sent instructions to the missionaries 
in the Far East concerning polygamist converts. Any polygamist 
who, with all his -wives, shall be converted and baptized, must put 
away all his wives except the first one, quae sola est vera uxor, si 
in illiits matrimonio nidlum intervenit impedimentum juris naturalis 
vel positivi conditi ab eorum principe." 

It may be said, therefore, that it is practically certain, as Car- 
dinal Gasparri maintains, that the State does enjoy the power to 
make diriment impediments, nullifying in conscience the marriage 
of the unbaptized, provided such impediments are not against the 
divine or natural laws and are reasonable for the promotion of the 
public welfare. 

The second question raised by this case is: Did the Catholic 
woman incur the impedimentum criminis by agreeing to cohabit 
with John, under a promise of marriage, when she knew that John 
had a wife living ? She did not. In the first place, it is practically 
certain that John did not have a wife living, since his marriage 
to Dora was rendered invalid by the civil law. But suppose that 
John's marriage to Dora is doubtful. Even in that case it is 
doubtful whether one incurs the impedimentum criminis if 



POWER OF THE STATE TO MAKE DIRIMENT IMPEDIMENTS 17 

one is ignorant of its existence. This impediment differs from 
all other ecclesiastical impediments in that ignorance probably ex- 
cuses from it, while ignorance does not save one from incurring 
the others. It is very probable that the Church intends this par- 
ticular impediment in the nature of a punishment, pocnae vindica- 
tivae extraordinariae. Ignorance, however, always saves one from 
incurring extraordinary penalties. This is the view of a great 
many theologians and canonists. 

A dispensation, however, super hnpedimento criminis adidtcrii, 
might be procured, ad cautelam; and, of course, a dispensation 
from the diriment impediment disparitatis cidtus. 



IV. RESTITUTION TO A FOUNDLING ASYLUM 

A rich man named Cyrus, in order to protect his good name, has 
his illegitimate child conveyed secretly to a foundling asylum con- 
ducted by the city. He has no idea of reimbursing the asylum for 
the expense it incurs by caring for his child. Of course he has 
plenty of means to do so, if he wished, nor need he run any risk of 
having his shame discovered. However, he has no intention of 
doing so. Now he goes to confession, and in the course of his 
confession this fact becomes apparent to the confessor. The con- 
fessor, knowing Cyrus' ability to relmxburse the foundling asylum, 
and that in doing so he would run no risk of being discovered, 
obliges him to make good the asylum's expenses for the care and 
education of his child. This Cyrus refuses to do, whereupon the 
confessor refuses him absolution. Was the confessor right? 

Answer. — Strictly speaking, the confessor was not right. He 
imposed an obligation on Cyrus when it is seriously disputed by 
the gravest theologians whether any such obligation really exists. 
Every confessor knows, or ought to know, that it is not lawful to 
impose an obligation, dc cujus ccrtitudinc non constat. We are per- 
fectly aware that some of the greatest theologians would hold Cyrus 
to restitution. Foundling asylums, they maintain, are founded for 
the benefit and protection of the foundlings, and not for the ad- 
vantage or profit of the foundlings' parents. If the parents are able 
to pay, they are bound in conscience to pay. This is the opinion of 
de Lugo, Billuart, Carricre, and many others . But there are many 
other theologians who hold the contrary opinion and maintain that 

iS 



RESTITUTION TO A FOUNDLING ASYLUM 19 

Cyrus, in this case, is not bound to make any restitution. And the 
opinion of these latter appears to St. Alfonsus to be the more prob- 
able of the two. They even hold that, though the foundling asylum 
should be poorly endowed or in straitened circumstances, never- 
theless restitution cannot be strictly enjoined in a case like the one 
here submitted. The reason is because these institutions have been 
founded not only for the relief of the poor, but also for the protec- 
tion of the rich, in circumstances where their good name might else 
be put in jeopardy, or where they might be induced to commit 
abortion, or to destroy their illegitimate offspring. These institu- 
tions have been founded and are maintained principally to discour- 
age abortion and child murder, by rendering these quite unnecessary 
for the protection of the good name of the parents of illegitimate 
children. As the rich and influential are more exposed to the danger 
of defamation and loss of reputation by reason of illegitimate off- 
spring, and therefore more exposed to the temptation of destroying 
their illegitimate children, in order to save their good name and 
their position in the community, therefore are foundling asylums 
instituted and maintained for the relief and protection of the rich 
even more than for the poor. 

St. Alfonsus says: "Hujusmodi hospitalia non solum sunt in- 
stituta ad suhveniendum pauperibus, sed etiam dwitibus in infamiae 
pericido, in quo ipsi solent vel procurare abortiim, vel prolem necarc, 
ne infamentur; et hiiic malo intendunt hospitalia occiirrere: imo dico 
ista potius, qtiam pro pauperibus, erecta esse pro pueris spuriis, ad 
eos liberandos a discri}nine mortis aeternac et temporalis, quam 
facile subirent ob infamiae timorcm, si adultcri ex propria eos alere 
deberent" (Lib. 4, n. 656) . 

Moreover, since the municipality, in the case before us, supports 
the foundling asylum, its benefits must be free to all the citizens 



20 THE CASUIST-VOL. IV 

alike, whether rich or poor, without discrimination, since the asylum 
is supported from the public taxes. And the same may be said of 
all private asylums that receive city aid, since such aid is rendered 
from the public treasury. Even in the case of strictly private 
asylums, which receive no State aid, but are maintained by voluntary 
private subscriptions, the first and primary purpose of such insti- 
tutions is to save the children from temporal as well as eternal 
death, by protecting the good name of their parents, and therefore 
their benefits are meant for the rich as well as for the poor. We do 
not mean that other private hospitals and institutions are intended 
for the rich in the same way that they are for the poor. Their 
purpose being different, the rich are bound to restitution towards 
them if they make use of them free gratis. But with foundling- 
asylums the case is diflferent, owing to the purposes of their insti- 
tution. 

Some theologians, however, as Noldin, S. J. Marres, etc., maintain 
that if the rich make use of private foundling asylums, or if the city 
cares for foundlings in private houses or in institutions intended for 
the poor, they ought to make restitution to such institutions. 

"Uhi vcro infantes exposlti cura communitatis civilis, sive in 
domihus privatis sive in hospitali ex tributis vel ex bonis paiiperibus 
destinatis aliintur, parentes divites expensas compensare tenentur" 
(Noldin II, 289, b.). 

In the case of Cyrus, therefore, since it was only probable, and 
by no means certain, that he was bound to restitution for the support 
of his illegitimate offspring, the confessor exceeded the bounds of 
justice in refusing him absolution because he refused to make resti- 
tution. Tlie confessor has no right to impose obligations on peni- 
tents when it is not sure that such obligations really exist. The con- 
fessor might have exhorted Cyrus to reimburse the asylum, or he 



RESTITUTION TO A FOUNDLING ASYLUM 21 

might have imposed it as a penance, but he was not justified in 
imposing restitution as a strict obligation. All the more, since such 
a course on the part of the confessor is directly adapted to turn 
Cyrus away from the Sacraments. 



THE CASUIST— VOL. IV 



V. SCANDAL BY IMMODESTY IN DRESS 

Claudia, a woman of considerable physical charm, admits in her 
confession that she is not over-modest in her dress. She is not, of 
course, positively indecent, or grossly immodest, but at the same 
time she admits that she would hardly pose for a model of Christian 
modesty in the matter of dress. She maintains that her intentions 
are pure, even though vain, and that if others think evil on her 
account, they do so because they are evil-minded, and that it is no 
concern of hers. She does not propose to dress like a nun, just 
because some people happen to be disposed to think evil. The evil 
that they think must be ascribed to their own impure minds, and not 
to her way of dressing. Though all the while she admits that her 
manner of dress is not as modest as it might be, nor in keeping with 
the general tone of dress adopted by the women of her own condition 
in life. The confessor knows that she has been the occasion of 
grave sins of thought and desire to certain young men of the parish. 
But he fears to insist too much, lest Claudia give up going to the 
Sacraments altogether. In this difficulty he desires to know : 

First : How far is Claudia to be held responsible for the scandal 
that her way of dressing seems to occasion ? 

Second: What advice ought the confessor give Claudia? 

Answer. — In Its original sense the word scandal means a trap, or 
a snare, laid for an enemy. In the Greek version of the Sacred 
Scriptures, the word is used in a metaphorical sense, to signify a 
stumbling-block, an offense, scandal, etc., because one who is the 
occasion of the sins of others, is like a man who puts a stumbling- 
block In their way and becomes "a stone of stumbling, or a rock of 
offense" (Is. vill, 14). In this latter sense the word scandal is used 



SCANDAL BY IMMODESTY IN DRESS 



23 



by the theologians and canonists. The definition of scandal, gen- 
erally accepted in theology, is the one given by St. Thomas, II. ii, 
q. 43, Art. I : "Opus minus rectum, praebens proximo occasionem 
spiritualis ruinae." Any conversation or any conduct which is, or at 
least appears to those present to be sinful, and which is calculated, 
therefore, to lead others into sin, is scandalous. 

The speech, or the actions, or conduct which give scandal, must 
either be sinful in fact, or else have the appearance of being sinful. 
If there be no sin in our speech or our conduct, and no appearance 
of sin, then such speech or conduct can not possibly be the occasion 
of another's sin. If our speech and our conduct are lawful and 
innocent, and have no appearance of evil, and still another takes 
occasion from them to commit sin, his sin can in no wise be im- 
puted to us, but wholly to his own evil disposition, moral weakness 
and malice. To be guilty of scandal, one's speech or conduct must 
be in reality sinful, or at least have the appearance, as far as others 
are concerned, of being sinful. Thus, if I eat meat on Friday with- 
out a sufficient reason, I commit sin; and if another is led by my 
example to do likewise, my action becomes the occasion of my 
neighbor's sin, and therefore scandalous. But if I have a sufficient 
reason, or even a dispensation, to eat meat on Friday, but my neighbor 
is not aware of it, and takes occasion by my example to transgress the 
law of abstinence himself ; although my eating meat on Friday is not 
a sin, since I have a sufficient reason or enjoy a dispensation to do so, 
nevertheless my conduct may seem to my neighbor to be sinful, since 
he is Ignorant of my reasons justifying my action, and I become guilty 
of scandal, since by my conduct, which appears to my neighbor to be 
more or less sinful and reprehensible, I lead my neighbor into sin. 

There is a popular use of the word scandal, which must not be 
confounded with its technical meaning. In ordinary parlance, the 



24 THE CASUIST— VOL. IV 

verb, to scandalise, is often used in the sense to shock, or astonish, 
or to cause wonder or amazement. Thus we say that such conduct 
is scandalous, meaning thereby that it is shocking or that it out- 
rages our moral sense. But, strictly speaking, no conversation and 
no conduct is scandalous, even though it be very shocking, unless it 
be calculated to lead those who hear it or see it into sin. The action 
that scandalizes need not necessarily be sinful ; it may be indifferent, 
or it may even be good ; but if good or indifferent, it must, at least, 
owing to the circumstances, be connected with the spiritual damage 
done to our neighbor, and therefore such action, on account of this 
relationship, is called by St, Thomas and the theologians minus recta. 
Indeed, as a rule, no shock accompanies scandal. The person scan- 
dalized, instead of being shocked or astonished by, or amazed at, 
the conduct that scandalizes him, is pleased by it, as justifying his 
own sin. It palliates his own transgression, in his own view of it, 
and lessens his guilt, if it does not wholly excuse it. 

The speech or the conduct that gives scandal is not the cause of 
another's sin, but only the occasion of it, the accidental or incidental 
cause that provokes it, but not its efficient cause or its sufficient 
reason. The real cause of the sin that follows on scandal is the free 
will of the person taking scandal. Such a person, seeing the evil, 
or seemingly evil, conduct of another, is provoked or incited by it 
to make up his mind to commit sin. The sin that follows must be 
ascribed entirely to his own free will as to its efficient cause. The 
speech or conduct that incited him to sin was not the cause, but only 
the provocation, or incitement, or occasion, of the sin. 

One may give scandal without another person taking scandal. It 
is not of the essence of scandal that it should actually lead another 
into sin. All that is required in order that any speech or conduct be 
scandalous, is that, of their nature, they should be calculated to incite 



SCANDAL BY IMMODESTY IN DRESS 25 

another to sin. If, under ordinary circumstances, the person guilty of 
evil speech or evil conduct must naturally apprehend that another 
person will be incited or provoked by them to commit sin, then such 
speech or conduct is scandalous, even though the person hearing or 
seeing the same is not, as a matter of fact, incited by them to commit 
sin. On the contrary, if I know that those who are listening to my 
conversation or who see my evil actions will not be incited by them to 
commit sin, because they are too firmly founded in Christian virtue 
to be influenced by my bad example, then I do not give scandal. 

If, while I perform an action that is sinful, or at least seems to others 
to be sinful, I intend to incite or provoke another to commit sin, I am 
guilty of direct scandal. Generally speaking, the one who gives 
direct scandal does so for his own advantage or pleasure. He de- 
rives or hopes to derive some benefit from the sin into which he 
leads his neighbor. Therefore he directly intends the sin of his 
neighbor, hoping to derive from it some advantage. He sins him- 
self, in order to incite his neighbor to sin, hoping to profit by his 
neighbor's sin. If, on the contrary, I do not intend or desire to 
incite my neighbor to sin, but at the same time I foresee that, if I 
commit such or such a sin in the presence of my neighbor, my 
neighbor will be incited by my conduct to commit sin himself, and 
nevertheless I commit the sin, then in that case I give indirect scandal. 
One who gives indirect scandal does not wish, or desire, or intend 
to lead his neighbor into sin, but nevertheless he foresees and ap- 
prehends that his neighbor will be provoked to commit some par- 
ticular sin, if he himself speaks or acts sinfully in the presence of 
his neighbor, and yet he proceeds to speak or act in a sinful manner, 
or in what at least appears to his neighbor to be a sinful manner. 

One may commit a mortal sin or only a venial sin in giving scan- 
dal. It all depends on the gravity of the sin that one foresees one's 



26 THE CASUIST— VOL. IV 

neighbor will commit. The action that I perform may be only 
venially sinful, and yet I may by it commit a mortal sin of scandal, 
because I either intend to incite my neighbor to commit a mortal 
sin, or at least I foresee that he will be incited by my conduct to 
commit a mortal sin. On the other hand, I may sin mortally myself 
and still only give venial or slight scandal, where I foresee that my 
action, although mortally sinful, will lead another only into venial 
sin. Consequently the gravity of the scandal one gives does not 
depend on the gravity of the sin one commits, but on the gravity 
of the sin that one foresees one's neighbor will be incited to commit. 
Thus a priest may give grave scandal by some act that is only 
venially sinful, whereas a layman, by the same act, would only give 
slight scandal or no scandal at all. 

Whoever gives direct scandal, that is, whoever intends, by his 
own action, to lead or incite another to sin, is guilty of sin not only 
against the love we owe our neighbor, but also against the par- 
ticular virtue or commandment against which he incites his neighbor 
to sin. Thus if I, by my sinful conduct, hope to provoke my neigh- 
bor to steal, I am guilty of a sin not only against charity, but also 
against justice. In case I do not intend the sin of my neighbor, but 
only foresee it and permit it, I am guilty of indirect scandal, which 
is a sin only against charity. For every virtue lays an obligation on 
us, not only that we ourselves do not violate it, but also that we do 
not desire that it shall be violated by others. 

Bearing these few preliminary "remarks in mind, it will easy to 
form a just judgment of Claudia's conduct. 

I. In the first place Claudia is guilty of indirect scandal. It is 
not Claudia's purpose, by her manner of dress, to lead others into 
sin. If such were her purpose she would be guilty of scandalum 
directum. But as her purpose is only the indulgence of her own 



SCANDAL BY IMMODESTY IN DRESS 27 

vanity and self-complacency, she becomes guilty of indirect scandal, 
inasmuch as her conduct is not altogether right, and is calculated 
to induce or incite others to sin. Indirect scandal, as has been said 
above, is a sin against charity, but not against the particular virtue 
against which our neighbor is led to sin. In the present instance, 
therefore, Claudia sins, at least materially, against charity, but not 
against purity ; that is, her conduct, in as far as it is scandalous, is 
only against charity. 

But what kind of a sin does Claudia commit, mortal or venial? 
We are inclined to think, that she commits a venial sin. Immodesty 
in dress, at least off the stage or outside of masked balls, will hardly 
ever amount to more than a venial sin. The custom of the country 
must be considered. Physical charm is more alluring than dress, 
and yet no one is obliged to destroy their beauty because others 
take scandal at it. Of course a pious woman would not be guilty 
even of a slight immodesty in her dress, if she thought it might lead 
others into even venial sin. But Claudia evidently is not pious, nor 
much concerned about her neighbor's spiritual welfare. If some 
persons unknown to her take grave scandal by her conduct, such 
scandal is rather scandalum sumptum et non datum. On the con- 
trary, if it is not a question of some indetermined persons taking 
scandal, but of a particular and known person, then the obligation 
to avoid giving scandal becomes more urgent. 

2. Claudia ought to be advised and exhorted to be more modest 
and careful in her dress, but she could scarcely be obliged, under 
pain of mortal sin, to change her style of dress, since it is rather her 
personal beauty than her dress that is the cause of the scandal. 
Especially since there is danger that Claudia might give up the fre- 
quentation of the Sacraments, it would be prudent not to urge a 
reformation in dress too vehemently. 



VI. LAW OF ABSTINENCE FOR U. S. SOLDIERS 

Dubium. United States soldiers are dispensed from the law of 
abstinence, except on six days of the year, (i) Does this apply to 
officers who live in their own houses and do not have to depend on 
the common mess, though living on the military reservation? 

(2) Does this dispensation apply to enlisted men, who live on 
territory adjacent to the reservation, or even on the reservation, but, 
receiving a commutation of rations, can and do supply their own 
tables as any civilian? 

(3) Do soldiers of the U. S. Army still have to observe absti- 
nence on Holy Thursday, one of the six days appointed for their 
observance ? 

A full discussion and answer would enlighten a number who seem 
unable to find a proper solution to some of these doubts. 

Answer. — Soldiers and sailors in the service of the Unites States 
were dispensed by Pope Pius IX. from the law of abstinence from 
flesh meat on all days of the year, except Ash Wednesday, Maundy 
Thursday, Good Friday, Holy Saturday, the vigil of the Assump- 
tion B. V. M., and the vigil of Christmas. With the exception of 
these six days, the soldiers and sailors of the U. S. Army and Navy 
may eat meat on all days of the year. Archbishop Kenrick, tract 4, 
part 2, n. ^y, of his Moral Theology, says : "Concessit Pius IX., ad 
preces episcopi Buflfalensis, ut milites et nautae Americani ab ab- 
stinentiae lege eximerentur universim, sex diebus exceptis, nempe 
feria quarta Cinerum, tribus ultimis hebdomadis sanctae diebus, et in 
vigilia Assumptionis B. M. V. et Natalis Domini. Id intelligendum 

28 



LAW OF ABSTINENCE FOR UNITED STATES SOLDIERS 29 

de lis qui actu inserviunt in castris, navibus, praesidiis, non autem 
qui ex venia absunt. Familiae cum iis communi victu utentes eo 
gaudent privilegio, non item quae procul degunt." 

The second plenary council of Baltimore (1866) records this in- 
dult of Pius IX. in the words of Archbishop Kenrick. 

I. Now it is asked: Does this papal indult include or exclude the 
oMcers of the U. S. Army and Navy? No mention is made of offi- 
cers in the indult. The soldiers and sailors have a common mess, 
provided by their government. They have no choice of rations, but 
must eat whatever is provided by the commissary. With the officers 
it is different. They are not obliged to partake of the common mess, 
but provide their own food according to their pleasure. 

The question, therefore, naturally arises : Are the officers dis- 
pensed from the common law of abstinence by the indult of Pius IX. ? 
There seems to be no reason why they should be included along with 
the men, in the papal exemption. Their condition does not differ 
from the condition of other professional men in the various walks 
of life. There would seem, therefore, to exist no more reason for 
exempting them from the common law of abstinence than for ex- 
empting other professional men from the same law. 

In the first place, it must be noted that no authoritative interpre- 
tation of the above indult has been issued by the Holy See. We are 
thrown back, therefore, for an interpretation of it, on the general 
rules of Canon Law for determining the meaning and scope of in- 
dults, as well as on the opinion of theologians, and on custom. In 
other words, we can give only an interpretatia doctrinalts et usiialis, 
gathering the meaning of the indult from the unauthoritative ex- 
planations of the theologians and from the common usage, or the 
manner of using or enjoying the indult, followed by those who enjoy 
it. Now, one of the rules for the interpretation of papal indults is : 



so THE CASUIST— VOL. IV 

Favores sunt ampliandi. As generous an interpretation as possible, 
consistent with the words and the scope of the indult, may be given 
to it when its character is favorable; that is, when it grants ex- 
emptions from the common law of the Church. There can be no 
doubt but that the officers of the Army and Navy of the United 
States are soldiers and sailors. The doubt is, whether it was the 
intention of the Holy See to exclude them from the enjoyment of 
favors granted to the rank and file. In duhio, favores sunt ampli- 
andi. According to the rules of interpretation, the exemption from 
abstinence may be extended to the officers. "Uhi lex non distinguit, 
nee nos distinguere dehemus." The indult makes no distinction be- 
tween officers and men; therefore neither are we obliged to make 
any distinction. 

This indult to our soldiers and sailors is the same, practically, as 
those granted to the soldiers and sailors of the different European 
countries. It is nothing more than an extension to our soldiers and 
sailors of a privilege that had been enjoyed by European soldiers and 
sailors for many years. 

It ought to be interpreted, therefore, in the same way that such 
indults to the soldiers and sailors of Europe are interpreted. Now, 
Mgr. Gousset, Archbishop of Reims, France, says, concerning the 
interpretation of a like indult to the French soldiers : 

"Soldiers are dispensed from the law of fast and abstinence. Does 
this double dispensation apply to officers also, as well as to the 
private soldiers, even in time of peace ? French officers believe that 
it does, relying on the common practise generally followed by them 
for the last fifty years. We do not approve of this practise, but 
neither do we condemn it. We tolerate it, and we think that con- 
fessors ought to tolerate it." 

"'Lts soldats sont dispenses du jeune et de I'abstinence. Mais cette 



LAW OF ABSTINENCE FOR UNITED STATES SOLDIERS 31 

double dispense est-elle pour les officiers comme pour les simples 
soldats, meme en temps de paix? Les officiers frangais le croient, 
se fondant sur I'usage generalement suivi par eux depuis environ 
cinquante ans. Nous n'approuvons point cet usage, mais nous ne le 
condamnons pas; nous le tolerons, et nous pensons que les con- 
fesseurs doivent le tolerer'"' (Theol. moral, I, 313). 

Father Genicot numbers among those exempted from the law of 
fast and abstinence: 

"Milites, saltem ii qui expensis gubernii aluntur; imo plerum- 
que ex consuetudine ab episcopis approbata vel tolerata, milites 
quilibet, etiam officiales eorumque familia. In Belgio iis omnibus 
conceditur quotannis facultas vescendi carnibus per totum annum, 
excepta feria sexta Parasceves. Hac generali dispensatione data, 
jam videntur carnibus vesci posse milites qui ad breve tempus, 
domum redire permittuntur, vel etiam habitualiter extra contubernia 
manducant ; nam indultum datur universe iis omnibus qui actu inter 
milites recensentur, neque requirit moralem impossibilitatem, quae 
pro officialibus eorumque familia adesse non solet" (Theol, moral. 
1,449). 

If this holds good for Belgian soldiers, including officers and their 
families, there is no reason why it should not hold good for Ameri- 
can officers and soldiers, since all the circumstances are practically- 
identical. 

Much depends on custom or usage. But it seems to be a well- 
established custom among the officers of the Army and Navy of the 
United States to consider themselves included among the benefici- 
aries of this papal indult. Thus I am informed by a learned and con- 
scientious priest, who was a chaplain for many years in the United 
States Navy, that he as well as the Catholic officers themselves al- 
ways considered themselves as included in the papal exemption, and 



32 THE CASUIST— VOL. IV 

that when he entered the service as chaplain, this construction of the 
indult was handed down to him, as a long-estabhshed usage. 

From this we conclude that the officers of the U. S. Army and 
Navy, together with their families, may tuta conscientia be included 
among the soldiers and sailors of the United States, who by papal 
indult are exempted from the law of abstinence, common in the 
Catholic Church, on all days of the year except the six days men- 
tioned in the indult. 

(2) Does this dispensation apply to enlisted men, who live on 
territory adjacent to the reservation, or even on the reservation, but 
who, receiving a commutation of rations, can and do supply their 
own tables like any civilian ? 

Yes, the dispensation applies to them, whether officers or enlisted 
men, whether living on the reservation or outside of it and furnish- 
ing their own food, provided only that they belong actually to the 
service. The exemption from abstinence applies, as Father Genicot 
says, "universe iis omnibus qui actu inter milites recensentur ; etiam 
iis qui habitualiter extra contubernia manducant." In Father Geni- 
cot's opinion the officers and men enjoy and may use the exemption 
even when absent on leave for a short time, ad breve tempus 
{Ibid.). 

(3) Do soldiers of the U. S. Army still have to observe abstinence 
on Holy Thursday? 

They do not. Besides their own particular exemptions, they also 
enjoy any exemptions granted by the Holy See, generally, to all the 
faithful of the United States. 

Now Leo XHL, in a special indult, known as the Quadragesimal 
indult, to be renewed every ten years, granted to the bishops of the 
United States permission to allow the use of flesh meat to all the 
faithful on certain days throughout the year, one of which days is 



LAW OF ABSTINENCE FOR UNITED STATES SOLDIERS 33 

Holy Thursday. As the soldiers and sailors of the U. S. Army 
and Navy must be reckoned among the faithful of the United States, 
and as the indult is general, it includes the soldiers and sailors. 

With reason, therefore, Father Slater, S.J., says : "The preceding 
indult, allowing the use of meat on Holy Thursday, extends also to 
the soldiers and sailors of the United States" (Theol. moral., vol. I, 
on fasting) , Father Slater goes farther, and says that if the soldiers 
and sailors of the U. S. Army and Navy can be regarded as working 
men, they can also enjoy the indult pro operariis, which would ex- 
cuse them from abstinence on the eve of the Assumption also. Thus 
their days of abstinence would be reduced to four; namely, Ash 
Wednesday, Good Friday, Holy Saturday, and the vigil of Christ- 
mas. Even that is three days more than the soldiers of Catholic 
Belgium are obliged to observe. 



VII. RECEIVING HOLY COMMUNION TWICE ON THE 
SAME DAY 

In a certain town, a convent of nuns is situated about half a mile 
from the parish church. In the absence of the convent's chaplain, 
the parish priest looks after the spiritual needs of the sisters. Now, 
it happened some time ago, that one of the sisters was very sick, 
and had been so for several months and was not expected to re- 
cover. One Sunday morning the sisters' chaplain heard this 
sister's confession, and gave her holy Communion. He then 
left for the day. About noon a heavy storm began to threaten, 
and the sick sister became very much alarmed and thought that 
she was going to die. She sent for the parish priest to ad- 
minister to her holy Viaticum. While the parish priest did not 
delay in going, nevertheless, he suspected that there was no im- 
mediate danger, and besides, he was very busy just then, having 
just finished the High Mass, and making preparations for Sunday- 
school, and Vespers, and Benediction. But his chief difficulty was 
that the sick sister had already on that Sunday received holy Com- 
munion, and he did not think it just right to give her holy Com- 
munion twice on the same day. However, to forestall any criticism 
that his refusal might give rise to, he gave the sick sister the holy 
Viaticum. On his way home he got a thorough drenching, which 
only confirmed his feeling that the sick sister should not have been 
given holy Communion a second time on the same day. Did he do 
right or wrong, in giving this person holy Communion a second 
time on that Sunday ? 

34 



RECEIVING HOLY COMMUNION TWICE ON THE SAME DAY 



35 



'Answer. — The theologians are divided on this question. Some 
think that it is not only lawful, but obligatory, to give holy Com- 
munion a second time, on the same day, in a case like this. Others 
think that it is neither obligatory nor even permitted. Others, again, 
think that it is not obligatory, but that it is lawful. Cardinal De 
Lugo treats the case (Disp. i6, num. 49, 50) : "Utrum debeat vel 
possit dari viaticum illi qui eadem die ex devotione communi- 
caverat." The cardinal notes the fact that the theologians are not 
agreed on the question, and points out the reasons of their disagree- 
ment. There are really two cases in which it may happen that a 
person might desire to receive holy Viaticum on the same day 
that they had already received holy Communion ex devotione. 
"Primo," says De Lugo, "si sacerdos v. g. celebravit mane, vel 
laicus communicavit, cum bene valeret, et postea vel morbo subito 
correptus, vel vulnere aut alio casu percussus, in periculo mortis sit 
eadem die. Secundo, si cum jam aegrotaret mane non animo 
sumendi viaticum, sed ex devotione communicavit, postea vero 
eadem die, morbo ingravescente et morte instante, velit viaticum 
accipere." A person may be perfectly well in the morning and go to 
holy Communion out of devotion, and later in the day be grievously 
wounded in an accident, or fatally hurt in one way or another. Or, 
it may be that a person was suffering from some disease or sickness 
in the morning, when they received holy Communion, but that there 
was no thought of death for many days or weeks, when suddenly 
later in the day the patient takes a bad turn and threatens to die at 
any moment. 

Some theologians think that in this latter case it is not lawful to 
give holy Communion a second time. Others think that it is not only 
lawful, but obligatory. Others, again, think that it is lawful, but 
not obligatory. 



36 THE CASUIST— VOL. IV 

Pope Benedict XIV. considered all these three opinions probable, 
and left it to the choice of the priest, which one he would follow. He 
says : "In tanta opinionum doctorum discrepantia, integrum erit 
parocho earn sententiam amplecti, quae sibi magis arriserit" (De 
Synod. 1. 8, c. ii). 

St. Alfonsus also admits that in practise any one of these opinions 
may be followed with a clear conscience. Theoretically, he thinks 
that if a person receives holy Communion in the morning in good 
health, and later in the day is grievously or fatally wounded, such 
a person may receive Viaticum that same day ; but that if the person 
is already sick in the morning, when receiving holy Communion, 
ex devotione, and with no danger of death present, and later in the 
day is placed in the danger of death, owing to a sudden aggravation 
of the disease, such a person may not receive holy Communion a 
second time. This is the opinion of De Lugo, also, who says : 
"Non video quomodo possit dari iterum communio eadem die." 

St. Alfonsus considers this opinion of De Lugo more probable 
than the others. The reason for this opinion is this: If, in the 
early morning, when Titius received holy Communion or said Mass, 
he was in danger of death, although he was not cognizant of the 
danger at the time, because the disease, for instance, had not suffi- 
ciently developed, then it is neither obligatory nor is it even lawful 
for him to receive again on that day, because he has already com- 
plied with the divine precept of receiving holy Communion in ex- 
tremis, and now it is incumbent on him to obey the precept of the 
Church, which forbids receiving twice on the same day. If, on 
the contrary, when Titius received in the morning or said Mass, 
he was quite well, and later in the day is fatally hurt, he is obliged 
to receive holy Communion again that same day, because his first 
Communion early in the day was not a fulfilment of the divine pre- 



RECEIVING HOLY COMMUNION TWICE ON THE SAME DAY 37 

cept of receiving holy Communion when in danger of death, be- 
cause in the morning the divine precept did not urge, since there was 
no danger of death, and a precept cannot be satisfied before it urges. 

Among modern theologians Cardinal Gasparri holds this same 
opinion (de Euch. II., 1152). 

All this regards the theory only. In practise, it was perfectly law- 
ful to give this sick sister holy Communion a second time on the 
same day. On the other hand, it was not obligatory, and had the 
priest postponed it until the next morning, and in the meantime the 
sister had died, he could not be blamed in any way. 



VIII. DE PROCURANDO ABORTU 

A physician was called to a case of antepartum eclampsia, and was 
informed that the patient had had three convulsions. Four hours 
after he was called the patient had a fourth terrible convulsion. The 
physician at this stage contemplated calling a second physician and 
causing the child to be delivered by operation. There was no 
question, of course, of craniotomy, etc., but only of accelerating the 
delivery. However, the attending physician decided not to send for 
another doctor, nor did he attempt the operation. Medicinal treat- 
ment was resorted to. The mother thereupon became conscious, 
and was delivered in the natural way. The child was born alive and 
was immediately baptized, and it lived for ten minutes after. 

Would it have been permitted for this attending physician to 
accelerate delivery by operation? In replying, kindly say a few 
words on this question of accelerating birth. — Inquirer. 

Answer. — "Eclampsia is a very grave complication of pregnancy, 
characterized by convulsions and coma. If delivery is effected dur- 
ing these convulsions, the convulsions will cease immediately or 
soon after, and the maternal mortality is then about ii per cent. 
If the expectant treatment is used in convulsive cases, about 28 per 
cent, of the mothers die. The condition is one of the most danger- 
ous found in pregnancy." ("Past. Med.," O'Malley — Walsh.) 

If pregnancy ends in the emptying of the uterus before the six- 
teenth week of gestation, the condition is called an abortion; if this 
happens between the sixteenth and the twenty-eighth weeks, it is a 
miscarriage ; if the child is born after the twenty-eighth week, but 

38 



DE PROCURANDO ABORTU 39 

before the full term, the birth is premature. Physicians commonly 
use the term abortion for both abortion and miscarriage. The 
moralists call any delivery of an unviable child an abortion, while 
the delivery of a viable child is called a premature birth. If the 
abortion is brought about by natural causes, without artificial inter- 
ference, it is called spontaneous; if the abortion is caused by outside 
interference, it is styled artificial. If the delivery takes place before 
the seventh month of gestation, or before the twenty-eighth week, 
it is called an abortion, because the child is not viable before the 
end of the seventh month. On the contrary, if the delivery takes 
place after the seventh month, but before term, that is, between 
the twenty-eighth and the thirty-sixth week, it is called a premature 
birth, because it is possible for a twenty-eight weeks' child to live 
outside the mother's womb. 

1. It is lawful, for a grave cause, to bring about, artificially, a 
premature birth. First, we say that it is lawful, because a child, 
after the seventh month of gestation, is capable of living outside its 
mother's womb, and therefore to remove it from its mother's womb 
is not equivalent to killing it, since the mother's womb is not an 
absolute condition of its living. Secondly, we say that it is not 
lawful, except for a grave cause, to remove the child, even after the 
twenty-eighth week. The reason is because removing a viable 
child from its mother before the full term of gestation has been 
reached, is to expose the .child's life to very serious danger, not 
alone of dying, but if it should live, of being weak and undeveloped. It 
is not lawful, however, to expose the child to this risk, except to ward 
off some graver evil, namely, the death of the mother or of the child. 

2. It is never allowed directly to remove, or to cause to be re- 
moved, an unviable child from its mother, not even though it be the 
last hope of saving the mother's life. 



40 THE CASUIST— VOL. IV 

Nunquam licet directe procurare abortum. An abortion is the 
removing from the mother of a child that is not yet viable, i. e., 
before the seventh month of gestation has been completed. 

It is never allowed, because such a removal is tantamount to 
killing the child, and it is never permitted directly to cause the 
death of an innocent person. Even though the unviable foetus could 
be delivered alive and baptized, and thus its soul's salvation pro- 
cured at the same time that the mother's life is preserved, it is 
strictly forbidden by the Holy See. The end cannot justify the 
means. A child that is not seven months cannot live outside its 
mother's womb. To remove it thence is to kill it. To kill it is to kill 
the innocent without justification. That is murder. Therefore there 
is a long list of prohibitions by the Holy See declaring the unlawful- 
ness of directly procuring abortion, even though it be the only means 
of saving the mother's life, and the unborn child is doomed to die 
by nature in any case. Both the mother and child must be left 
to die, since it is not lawful to save the mother by destroying 
the child. 

In the latest edition of his Moral Theology, 1910, Father Lehm- 
kuhl says concerning this matter : "In former editions I endeavored 
to bring forward reasons that might probably justify the violent in- 
vasion of the unviable foetus and its vital element as a last resort 
for saving the mother's life. And although I proposed the matter as 
doubtful, not trusting to my own judgment in so grave a matter, 
still I thought that the considerations which I presented might have 
some weight in rendering less sure an obligation that created the 
very greatest hardships both for physicians and mothers. The 
reasons I advanced were these: The unviable foetus has a right to 
its vital element, namely, to dwell in its mother's womb, since nature 
has created this element for the child. But when special circum- 



DE PROCURANDO ABORTU 41 

Stances arise (as, for instance, when the mother's life is in jeopardy), 
the child's right to dwell in its mother's womb must give way to 
a prior right, namely, to the mother's right to preserve her own life. 
In this conflict of rights the child may be supposed to waive its 
right in favor of its mother. Living in its mother's womb is a con- 
dition extrinsic (bonum vitae extrinsecum) to the real life of the 
child, and therefore, for just and sufficient reasons, the child may 
sacrifice it, as a shipwrecked man may waive his right to a plank 
in favor of his friend, and trust himself to the waves, which speedily 
swallow him up. Indeed, it may be affirmed that the child does, in 
as far as it can, waive its right to dwell in its mother's womb, since 
the right has become wholly worthless, owing to circumstances, and 
not being necessary as a condition for procuring the child's baptism, 
since the child's baptism will be surer in the event of an abortion. 
And if dwelling in the mother's womb be considered as an intrinsic 
part of the child's life, bonum vitae intrinsecum, still any attack on 
the child's existence in the womb does not seem to be an attack on 
the child itself, but rather an attack on something common both to 
mother and child, to which the mother has as much right as the 
child, and in this dilemma the child yields its precarious right to its 
mother, just as one person might yield to another, where there is 
not air enough to keep both alive." 

These were some of the considerations that led Father Lehmkuhl 
to say, in the earlier editions of his Moral Theology, that it was not 
clearly and beyond all doubt immoral to cause a premature delivery 
of an unviable child, when the same held out the only possible hope 
of saving the mother's life. 

But all this notwithstanding, the Holy Office has repeatedly de- 
clared that artificial premature delivery, or abortion, is the same as 
craniotomy, is a direct killing of the child, and always and under all 



42 THE CASUIST— VOL. IV 

circumstances forbidden by the law of God. And Father Lehmkuhl 
admits that the reasons he brought forward in favor of artificial 
abortion speciosiores sunt quam veriores (Theol. moral. I., n. 1007). 

In regard to the case under discussion, it is qaite evident that 
if the woman was already past the seventh month of her preg- 
nancy, artificial delivery might be resorted to to save the mother's 
life. 

"When the grave complications enumerated above occur in the 
early months of pregnancy before the foetus is viable, the Catholic 
physician, since by the natural law and the decisions of the Holy 
Office he is forbidden to induce artificial abortion, must withdraw 
from the case. If there is no other physician to attend to the woman, 
he must let her die. He cannot withdraw without explanation, and 
in many cases the explanation of the condition will promptly result 
in the calling in of a physician who has no scruple in inducing this 
abortion, no matter how reputable he may be. The universal medical 
doctrine is to induce abortion in cases where abortion will save the 
mother's life, and the foetus is 'too young to amount to anything.' 
This is looked upon as legitimate abortion by the very best men that do 
not recognize the authority of the Holy Office ; they deem the position 
of the Catholic physician in these cases as altogether erroneous, or 
even criminal" ("Past. Med.," p. 54, O'Malley & Walsh). 

To resume, if the eclampsia occurred after the twenty-eighth week 
of gestation, an operation to hasten the delivery would have been 
lawful, since a seven months' child is viable, even though the chances 
are greatly against the child's living. If the child dies after bein^ 
delivered, its death is not a necessary result of the operation, since 
many children live although prematurely delivered. 

If the eclampsia occurs before the twenty-eightfi week of gesta- 
tion, it is not lawful to empty the uterus, though that is the only 



DE PROCURANDO ABORTU 

means of saving the mother's life, because such a procedure is a 
direct kilHng of the child. And what is said here of an operation 
holds equally well in regard to the administration of medicine. If 
the direct effect of the medicine is to empty the uterus, it is not 
lawful to administer it, except after the seventh month of gestation. 



IX. A MINOR'S OBLIGATION TO RESTORE 

Henry, a young man, with a reputation of being wild and a poor 
Catholic, confesses that once, when a minor and under 21 years of 
age, he borrowed a dollar from a saloon-keeper and also contracted 
a debt of ten dollars for liquor with the same man. Later on the 
saloon-keeper had Henry arrested for causing a disturbance in his 
saloon, and was so active in prosecuting the case that Henry was 
sent to jail for a month. Henry has not paid the debt he owes the 
saloon-keeper and refuses to pay it, as he thinks the saloon-keeper 
has already injured him more than the equivalent of what he owes. 
The saloon-keeper has consulted a lawyer about collecting the debt, 
and was told that he could not, as Henry was a minor. Moreover, 
Henry says that, if he were compelled to pay the debt, he could 
prosecute the saloon-keeper for selling liquor to a minor. The con- 
fessor thought that Henry was bound to pay the debt, but, fearing 
to drive him away from the Sacraments altogether, he absolved him. 
Was Henry bound in conscience to pay this debt? 

Answer. — Generally, all persons may bind themselves by con- 
tracts, unless incapacitated either by nature or by law. Now, the 
civil law declares that the contract of an infant, if not for necessaries, 
is voidable, but not void. An infant, in law, is a person under 21 
years of age. An infant may disavow his contract and so annul it, 
either before his majority or within a reasonable time after it. In 
the case before us, Henry, being a minor at the time he contracted 
the debt for liquor, is not bound by the civil law to pay it. Neither 
are his parents or guardians bound to pay it, since it was not a debt 

44 



A MINOR'S OBLIGATION TO RESTORE 45 

for the necessaries of life. Now, the question arises, does the civil 
law discharge Henry's conscience from paying this debt, or only his 
person. In other words, although the civil law denies the saloon- 
keeper an action against Henry in the courts to recover this debt, 
is Henry, nevertheless, bound in conscience to pay it? He is not 
bound in law ; is he bound in equity ? The civil code, in thus pro- 
tecting the minor, confers a twofold privilege on him : "First, it de- 
clares the contracts of minors voidable, unless very special formal- 
ities of law are complied with. Secondly, if the minor rescinds the 
contract, he is not bound to make restitution for any damage the 
other party to the contract sustains, unless he still have in his posses- 
sion the other party's property or its equivalent. If, now, we suppose 
that Henry obtained the ten-dollar's worth of liquor that he got from 
the saloon-keeper without fraud, that is, without representing himself 
as over 21 years of age, then he is not bound in conscience to pay for 
it, since the liquor was ad usus inutiles et prodigos, and the law 
voids such contracts and annuls any obligation of the minor party to 
them to make restitution. In fact, the minor's conscience is dis- 
charged from all obligation of restitution, even though the minor, 
before obtaining credit, had to promise, or did of his own free will 
promise, to waive his rights under the law and not to take advantage 
of the statute. If a minor, without consent of his father, buys any- 
thing, he cannot be forced to accept it or to pay for it. If he has 
accepted the goods purchased and paid for them, he may return 
them to the vendor and must be given back his money. If he has 
consumed or lost the thing purchased before paying for it, he can- 
not be held in conscience for the purchase price. If a minor, with- 
out the consent of his father or guardian, borrows money and uses 
it for foolish purposes, he is not obliged to make restitution, even 
though, after reaching his majority, he be well able to do so. This 



46 THE CASUIST— VOL. IV 

is, of course, provided no deception has been practised by the minor 
in obtaining the money. But if the money has been used for 
necessary or useful purposes, then the minor is obhged to pay, be- 
cause in that case he has really derived a benefit from the money, 
and is in so far better off than he was before, and from such an 
obligation it is not the purpose of the law to release him. The 
purpose of the law is to protect the young, who have as yet an im- 
perfect knowledge of the value of things and the obligation of 
contracts, from the snares of the designing, and the wiles of dis- 
honest and deceitful men. If such men take advantage of the youth, 
and thoughtlessness, and inexperience of minors for their own profit, 
they do so at their own risk, and it is well that they should suffer, 
for the protection of the weak and ignorant. The damage that they 
suffer must be charged to themselves. 

This is the general teaching of the theologians. Thus, for in- 
stance, Father Lehmkuhl I. 1253, says : 

"Difficilior est questio, teneatur ne solvere aes alienum con- 
tractum ex compotationibus aliisve prodigis actionibus, vel ex pe- 
cunia mutuo accepta ad ejusmodi usus malos et prodigos, si alter, 
V. g. caupo, sciens minori haec praestiterat, ut is genio suo posset 
indulgere, quando lex positiva jus debita exigendi creditori neget; 
aliis verbis, potest ne talis lex ita accipi, ut in poenam cooperationis 
illicitae jus creditoris prorsus extinguatur, an ita tantum, ut sola 
actio judicialis denegetur? 

Jus Romanum sic revera constituit de pecunia mutuo accepta. 
Quare si consumpta est ad fines utiles vel etiam ad eas recreationes, 
ad quas spectata conditione pater adolescentis pecuniam daturus 
f uisset, reddenda quidem est ; at si exhausta est ad usus excesswos et 
inutiles, neque minor fraudulenter egit nee sui juris (in casibus 
exceptis) erat aut esse videbatur; ex complurium sententia ne postea 



A MINOR'S OBLIGATION TO RESTORE 47 

quidem, quando major evasit, in conscientia est reddenda. Ita 
Lessius, de just, et jure, 1. 2, c. 20, n. 8 ss; Laymann, 1. 3, tr. 4, p. 
3, c. 15; Molina, etc., Renter, III., n. 151, in fine. Id ex jure Ro- 
mano. Neque recentiora jura contradicere videntur, cum negent 
filios minores Urmiter contrahere posse sine consensu curatoris." 

Conclusion. — Henry is not obliged in conscience to settle for this 
ten-dollar liquor bill, neither now nor at any future time, whether 
he be able to do so or not. This should be explained to him, to re- 
move any doubts that might lurk in his conscience. As for the one 
dollar that he borrowed from the saloon-keeper, that also he is not 
obliged to return, if he used it for liquor or gambling, etc. If he 
used it for a good or useful purpose, he must return it. However, 
as it was a materia levis, it need cause no anxiety. 



48 THE CASUIST— VOL. IV. 



X. EXCOMMUNICATION ON ACCOUNT OF ABORTION 

Bertha is urged by her husband Titius to take a certain kind of 
medicine in order to procure an abortion. She hesitates for some 
time, and finally consults her mother about it. The mother is more 
or less non-committal. She prefers not to interfere. She does not 
advise the abortion, fearing the consequences to her daughter; 
neither does she endeavor to persuade the daughter against com- 
mitting the act. Finally, Bertha makes up her mind to take the 
medicine, to the satisfaction of her husband. The consequence is 
that an abortion follows, and Bertha very nearly loses her life. The 
experience has been a very dear one, and all three are very repentant. 
They are all Catholics. Are they all excommunicated? Are special 
faculties required to absolve them? 

Answer. — Let tis consider, first, the case of Bertha, who takes the 
medicine and causes the abortion. Does a mother who procures 
an abortion on herself incur excommunication? It is probable that 
she does not. It is quite true that Pius IX., in the bull Apostolicae 
Sedis, 1869, expressly says that "procurantes abortum, eifectu 
secuto" incur excommunication, and that the excommunication is 
reserved to the bishops. Now it would appear that if any one ought 
to be numbered among the procurantes abortum, it surely would be 
the mother who procures an abortion on herself. Nevertheless, there 
are very grave theologians, among others St. Alfonsus, who main- 
tain that the mother herself is not included among the "procurantes 
abortum" whom the papal decrees punish by excommunication. 



EXCOMMUNICATION ON ACCOUNT OF ABORTION 49 

They do not affirm that it is altogether certain that the bull Aposto- 
licae Sedis of Pius IX. does not include the mother herself among 
the "prociirantes ahortum" who incur excommunication, but they do 
maintain that it is probable that the bull does not include her. Their 
line of argument is this : In all the papal bulls anterior to the bull 
Apostolicae Sedis of Pius IX., 1869, in which excommunication is 
decreed against procurantes abortum, a distinction is made between 
the mother herself and the other procurantes abortum, and the 
mother was never included among those who incurred excommuni- 
cation for procuring abortion, even though the term "procurantes 
abortum" was always employed in such papal decrees. St. Alfonsus 
considers the opinion which says that the mother herself does not 
incur the excommunication as altogether probable, by reason of the 
number and weight of the theologians who defend it; and if the 
reasons on which it rests be considered, he thought it far more 
probable than the opinion which maintains that the mother does incur 
the excommunication. 

At the time that Pius IX. issued the bull Apostolicae Sedis in 
1869, and long before it, the term "procurantes abortum" had come 
to have a very special and restricted meaning, excluding the mother 
from the number of those who were included in the term procurantes 
abortum. When Pius IX., therefore, used the term procurantes 
abortum, in the bull Apostolicae Sedis, he was cognizant of this 
special and technical sense in which it was generally used and under- 
stood by the theologians and canonists, and as he used it in his de- 
cree without any qualification or explanation, he is justly supposed 
to have used it in the peculiar sense in which it was used in the 
law, and, therefore, that he used it in its sense of excluding the 
mother. Weight is added to this view, if we bear in mind that the 
purpose of Pius IX. in publishing the bull Apostolicae Sedis in 1869 



50 



THE CASUIST— VOL. IV 



was to curtail both the number and the application of the excom- 
munications at that time prevaiHng in the Church. 

It is probable, therefore, that Bertha did not incur the excom- 
munication decreed by Pius IX. against "procurantes abortum." 
Would a simple confessor be justified, therefore, in absolving 
Bertha without first procuring special faculties, at least ad caiitelam, 
in case, de facto, Bertha did incur the excommunication? In that 
case, a simple confessor would not require any special faculties to 
absolve Bertha, neque ad validam, neque ad Ucitam absolnHonem. 
There exists here a duhium juris, that is, a doubt about the interpre- 
tation of the law. Now whenever there exists a duhium juris, that is, 
whenever the theologians do not agree as to the meaning and inter- 
pretation of a law, whether, namely, the law deprives the confessor 
of jurisdiction in the confessional in certain cases or not, then the 
confessor may absolve validly and licitly in such cases, and if, de 
facto, the case should be reserved, then the Church supplies the nec- 
essary jurisdiction to absolve from it. In this way the jurisdiction of 
the simple confessor which is in Bertha's case theoretically doubtful, 
become practically certain ; and Bertha is absolved not jurisdictione 
dubia, sed jurisdictione practice certa. In dubio juris, Ecclesia 
supplet. 

But, again, let us suppose that the woman or mother who pro- 
cures an abortion on herself is included in the bull of Pius IX. 
The case is a papal resei-vation and ignorance of the reservation 
saves a person from incurring papal censures. For what the Pope 
reserves is not the sin, but the censure ; in our case, the excommuni- 
cation. The purpose of the Holy See is to deter from the sin of 
abortion by punishing it by excommunication and reserving the 
excommunication. But if a woman does not know of the excommu- 
nication attaching to abortion or that it is reserved, how can the 



EXCOMMUNICATION ON ACCOUNT OF ABORTION 



51 



excommunication act as a deterrent? If the purpose of the censure 
fails, then the censure itself fails, for it becomes useless. In the 
case before us, although Bertha may have been fully aware of the 
gravity of the sin she was committing, still if she did not know that 
she incurred excommunication by it or that the excommunication 
was reserved, she did not, in fact, incur the excommunication, and 
no special faculties are required to absolve her. 

2. In regard to the husband, Titius, who urged his wife to take 
the medicine for the purpose of causing an abortion, it is certain, 
that under the law, as it existed up to the time of Pius IX., he in- 
curred the excommunication. For in the bull Effraenatam, of Sixtus 
v., not only prociirantes abortum incurred excommunication, but 
also all persons who by assistance, or counsel, or favor, aided or 
abetted in procuring abortions, provided they acted knowingly. In 
the bull ApostoUcae Sedis, Pius IX., restricts this excommunication 
to the procurantes aborfiini. Therefore, all those who only cooper- 
ate but do not procure the abortion, do not incur the excommunica- 
tion. According to Pope Sixtus V., these are to be considered as 
procurantes abortum, "qui de cetero per se, aut interpositas personas 
abortus sen foetus immaturi ejectionem procuraverint, percussioni- 
hus, venenis, medicamentis, potionibus, oneribus, laboribus que 
mulieri pregnanti impositis, ac aliis etiam incognitis vel maxime ex- 
quisitis rationibus, it a ut re apse abortus inde secutus fuerit." The 
sense of the procurantes abortum of the bull of Pius IX. must be 
gathered from these words of the bull Effraenatam of Sixtus V. 
According to these words of Sixtus V., it would be difficult to in- 
clude Titius among the procurantes abortum, since all he did was 
to urge his wife to take the potion. He must be numbered among 
the cooperantes ad abortum, but not among the procurantes abortum. 
These latter, however, are the only ones now who incur excommuni- 



52 THE CASUIST— VOL. IV 

cation. No special faculties are required, therefore, to absolve 
Titius. 

3. There can be no question about Bertha's mother. She incurred 
no censure. She was scarcely a coopcrans negative. Of course, she 
sinned mortally. So did the others; but sin and censures are two 
very different things. 



XI. THE LAW OF ABSTAINING FROM FLESH MEAT 

John, a business man, was in the diocese of P. on business, on a 
Friday, when a dispensation from the abstinence from flesh meat 
was granted by the Holy See to the whole diocese of P. John was 
not a diocesan of P. but knowing that all the Catholics of the 
diocese had permission to eat meat on that Friday, he also ate it. 
He did the same on another occasion, being invited by a friend to 
spend a few days with him. On New- Year's day, which fell on 
a Friday, he went to a neighboring city, outside of his own diocese, 
purposely to eat meat, because in his own diocese no dispensation 
from the abstinence had been announced, whilst in the neighboring 
diocese such a dispensation had been published. Did John commit 
a sin in any of these instances ? 

Answer. — John did not commit any sin, either in the first or the 
second instance. This is evident from the very nature of the law 
of abstinence itself. A law differs from a personal command or 
precept in this, that a personal precept affects the individual person, 
following him like his shadow, say the canonists, and "sticking to 
his bones" {adhacret ossibus), whilst a law affects immediately a 
definite territory and only mediately the inhabitants of the territor}^ 
A personal mandate or precept follows the individual to whom it has 
been given wherever he goes and is not restricted to any territory 
or district. Thus if a bishop issues faculties to a priest, with the 
condition that they are revoked ipso facto the first time the priest 
enters a saloon to drink, then it makes no difference whether the 
priest enters a saloon within the limits of the diocese, or outside the 

S3 



54 



THE CASUIST— VOL. IV 



limits, he loses his faculties, because he transgresses a personal 
precept, given to him individually, and which is not restricted by the 
limits of the diocese. But if a bishop makes a general rule for all the 
priests of his diocese, that they are suspended ipso facto, for entering 
a saloon, then such a rule is a law and is operative only within the 
limits of the diocese, and if a priest of the diocese transgresses 
outside the diocese, he does not incur suspension. 

Those, therefore, who are outside the territory affected by a law, 
are not bound by the law. The law of abstinence from flesh meat on 
Fridays is a general law of the Church and binding on all Catholics 
in all places, except where certain places or persons have been 
exempted by special dispensation. The diocese of P. on the Friday 
mentioned was exempted from the law. The exemption affected 
immediately the territory and only mediately the inhabitants of the 
district. Any inhabitant of the diocese of P. who on that Friday 
left the diocese would be bound by the law of abstinence, as soon 
as he crossed the diocesan border, and anyone living outside the 
diocese, would be exempted from abstinence the moment he entered 
the diocese. The law does not oblige anyone to remain within its 
domain, but obliges those who are within the territory affected by 
the law to keep the law. 

In the third instance, cited above, where John leaves his own 
diocese- on purpose to evade the law, the common opinion of 
theologians is also that he does not commit any sin, as far as the 
Church's law of abstinence is concerned. He might sin by gluttony 
or scandal, but not against the law of abstinence. The law of 
abstinence binds John as long as he remains within the territory or 
district subject to the law, but the law does not forbid John to leave 
the district, even in order to evade the law. Therefore, when John 
left his own diocese on New- Year's day, where he believed the law 



THE LAW OF ABSTAINING FROM FLESH MEAT 55 

of abstinence to be in force, and went to a neighboring diocese, 
where the law was suspended, he only made use of his right to go 
where he pleased, as long as it was not forbidden by the law. 

It cannot be maintained that the will of the Holy See, in granting 
a dispensation from the Friday abstinence to a certain diocese, is 
that only the bona fide inhabitants of the diocese are to enjoy it. 
For, since such will of the Holy See would be contrary to the very 
nature of law, it must be clearly proven to exist before it can be 
allowed. In some particular instances the Holy See has expressly 
forbidden leaving the territory to evade the law in fraudem legis; as, 
for example, Urban VIII. forbade leaving the territory to evade the 
law of clandestinity in marriage, and Clement VIII. forbade leaving 
the territory to escape reservation. But unless it be expressly forbid- 
den, everyone is free to withdraw from a territory affected by a law, 
in order to evade or escape the law. This must be regarded as the 
general principle and the prohibition to leave the district in fraudem 
legis is the exception. Therefore, as far as the Church's law of 
abstinence from flesh meat on Friday is concerned, John did not in 
any way sin against this law by leaving the territory where it was 
binding and going elsewhere, where it did not bind, even though he 
did so purposely, in order to escape the law. 

But independently of the law of abstinence, it is very possible that 
John may have sinned in this third instance against the law of God, 
forbidding gluttony and scandal. But under ordinary circumstances, 
such gluttony or scandal would scarcely amount to a mortal sin. 



XII. SOME LITURGICAL QUESTIONS CONCERNING 
HOLY MASS 

1. Is it permitted for the priest, while he genuflects and elevates the 
sacred species after the consecration of the Mass, to say some vocal 
prayers, like: Credo, Dme or Adoro tef 

2. Is it right for another priest to take the ciborlum that has just 
been consecrated in the Mass, immediately after the consecration, 
and to distribute holy Communion from it ? 

3. Is it permitted for the celebrant of a high Mass to recite his 
office while the choir sings the Gloria and Credo? 

Answer. — i. It is not permitted for the celebrant of the Mass to 
say any vocal prayers during the Mass, except such as are contained 
in the Missal. Pope Pius V., in the Bull "Quo primum," which is 
inserted at the beginning of the Roman Missal, strictly ordains: 
Ne in Missae celebratione alias ceremonias vel preces, qiiam quae 
missali continentur addere vel recitare praesumant. And the Council 
of Trent admonishes bishops ut caveant ne sacerdotes ritus alios, aut 
alias ceremonias et preces in missarum celebratione adhiheant (Sess. 
XXII. de ohservandis in celebratione Missae). It is permitted to 
pray mentally and to elicit acts of faith, hope and charity within the 
soul, but it is forbidden to express them with the lips or voice. If 
it were permitted to say vocal prayers during the Mass, one can 
easily imagine to what abuses it would lead in a very short time. 
There are some theologians, v. g., Noldin, S.J. (de Euch. 210) who 
say that it is permissible to recite vocal prayers in the Mass while 
genuflecting or incensing the altar, etc., as such a practise does not 
seem to be contrary to the rubrics. Still the practise does appear to 

56 



SOME LITURGICAL QUESTIONS CONCERNING HOLY MASS 



57 



be contrary to the prescriptions of St. Pius V. and the Council of 
Trent and ought to be discouraged, 

2. It is not permitted to distribute holy Communion to the faithful 
during Mass, from a ciborium consecrated in that Mass, unless 
after the communion of the celebrant. 

The question was put to the Congregation of Rites at Rome, May 
II, 1878: 

"Valetne siistincri usus aliquarum ecdesiarum, in quihus ratione 
concursus ingentis populi, cum non sufficiaf niultitudini pro sacra 
communione quantitas hostiarum, jam celebrata nova missa, sfatim 
a consecratione reassumitur distributio communionis?" The Sacred 
Congregation answered: "Abusiim esse inter die endum." 

The reason of this answer is ready to hand. The sacred species 
contained in the ciborium that has just been consecrated are a part 
of the sacrifice of the Mass in which they have been consecrated, and 
as such should not be consumed until the communion of the Mass. 

3, It is not strictly proper for the celebrant of a high Mass to 
recite his breviary while the choir sings the Gloria or Credo. The 
question was proposed to the Sacred Congregation of Rites, March 
20, 1869: An ministri parati, dum canitur Missa solcmnis, privatim 
recitare valeant horas cononicasf The Sacred Congregation an- 
swered : non esse interloquendum, which means that it is so evident 
that the officers of a solemn Mass should not recite the divine office 
during the Mass, that the question should not be asked as being an 
idle one. This can easily be gathered both from the bull of Pius V. 
and the prescriptions of the Council of Trent, quoted above. 

The singing of the Gloria and Credo, as well as of the other parts 
of the Mass by the choir, is a part of the liturgical service or rite of 
the Mass. To introduce the recitation of the breviary into them is 
certainly adding to the rite something external to it, which is not 



58 THE CASUIST— VOL. IV 

found in the Missal, and which is not authorized by the Church. 
Nor should the deacon or subdeacon of a solemn Mass recite the 
office during any part of the Mass. The same reasons apply to them 
as to the celebrant. Even during the sermon at a solemn Mass, the 
ministers of the Mass should not recite the divine office, but should 
rather listen patiently, if not piously, to the sermon, and thereby 
avoid disedifying or scandalizing the faithful. 



XIII. THE DISPENSATION SUPER IMPEDIMENTO 
CONSANGUINITA TIS 

Two first cousins desire to be married. The reason they advance 
for so desiring is that a child has already been born to them. 
Through their pastor they apply to the Holy See for a dispensa- 
tion super impedimento consangumitatis in secundo gradu aequali. 
But before the arrival of the dispensation, the man changes his 
mind about marrying his cousin, and marries another girl. After 
some time his wife dies, and he now desires again to marry his 
cousin. The dispensation that he sought from the Holy See in the 
first instance is now over a year old. Is it still available? 

Answer. — The dispensation is available or holds good still, 
whether the pastor has fulminated it already or not. In 
case the dispensation has never been fulminated, it may be ful- 
minated now. In case it has already been fulminated, the parties 
in whose favor it was granted may still make use of it. The reason 
that the dispensation is still good, although over a year has elapsed 
since it was granted, and although the parties made no use of it 
when it was granted, is that nothing has happened since the dis- 
pensation was granted which would invalidate it. This dispensa- 
tion is known in Canon Law as a rescript non tantum gratiae 
faciendae, sed gratiae factae. There exists this distinction between 
a gratia facienda and a gratia facta, that the former expires with 
the death of the superior granting it, if the case has not yet been 
opened, or, as they say in the law, re adhuc integra; while a gratia 
facta takes effect as soon as it is granted and the papers signed 
and sealed, and is not extinguished by the death of the grantor. If 

59 



6o THE CASUIST— VOL. IV 

this papal dispensation, granting these two first cousins permission 
to marry were a rescriptum gratiae faciendae, it would become in- 
valid if the Pope died before it was fulminated. But, as it is con- 
sidered a rescriptum gratiae factae, it would still be good even 
though in the meantime the Pope had died. Besides the death of 
the Pope, however, there are other causes that may invalidate papal 
rescripts, even rescripts containing favors. Such causes are: 
(i) If the motive for granting the favor or dispensation ceases; 

(2) The implied or expressed revocation of the rescript by the 
one granting it; 

(3) The implicit or explicit renunciation of the favor by those 
to whom it was granted. 

Now, in the case here submitted, none of these causes are veri- 
fied and, therefore, the rescript is still valid. The motive for 
granting the dispensation was the existence of a child, born to 
these first cousins outside of wedlock. But that reason still holds 
good. The child is still living. There is no question of the Holy 
See having revoked the dispensation, since such a revocation is 
not presumed in law, but must be proved. Nor can it be presumed 
that the recipients of the dispensation have renounced their claims 
to it. That the man did not use it, when it was first granted, but 
married someone else, is not an implied renunciation of the dispen- 
sation. St. Alfonsus treats the question: "Quando intelligatur 
facta tacita renunciatio dispensatio? Alii dicunt, quando dispen- 
satus per decennium ilia non utitur, cum uti possit, ut ait Martin. 
Alii (ut Sanchez et Bordon) quando dispensatus actum contrarium 
ponit, puta, si obtenta dispensatione ad contrahendum cum una, 
quaerat inde contrahere cum alia; sed per ista signa nullo modo 
censeri factam esse renunciationem, tenendum esse dicunt Salman 
ticenses, cum Suarez et Tap. Hinc inquiunt, quod dispensatus ad 



DISPENSA TION SUPER IMPEDIMENTO CON SANG U IN IT A TIS 6 1 

contrahendum cum una, bene possit ilia dispensatione uti etiam 
postquam cum alia contraxerit, quae mortua sit; vel postquam 
emiserit votum castitatis, voti dispensatione postea tantum obtenta." 
L. I, 198. 

But suppose the child dies before these two cousins get married, 
may they still use the dispensation? If the child dies before the 
rescript is fulminated, then they cannot use it, as it becomes in- 
valid. The pastor, in this case, is delegated by the Holy See to 
execute the dispensation. He cannot, however, validly execute the 
dispensation, except on the condition, which is either expressed in 
the rescript or at least understood, namely : si prcces veritate nitan- 
tur. By this formula it is required that the motive for which the 
dispensation was granted still exist. This motive, in the present 
case, was the existence of the child, which was the sole reason 
urged why the dispensation should be granted. Now, if this reason 
no longer exists, the only reason for the dispensation disappears, 
and as it has not been executed, it becomes invalid. But if the 
child died only after the dispensation was executed or fulminated, 
then the cousins may still use it, because as soon as it is executed, 
it removes the impediment of consanguinity and enables the cousins 
to marry, and the impediment once removed, does not revive ac- 
cording to the rule of Canon Law : Factum legitime retractari non 
debet, licet casus veniat in quo non potuit inchoari. Reg, y2> i^ 
sexto. Therefore, this dispensation, being fulminated, has already 
produced its effect and cannot be retracted by a supervening fact, 
nor can the impediment of consanguinity, once removed, be re- 
vived. 



XIV. IS IT LAWFUL TO MAKE ANOTHER PERSON 
DRUNK? 

A mother of a family was obliged to undergo an operation for 
the removal of a tumor from her arm. The tumor was a large one 
and had completely paralyzed the arm. The surgeon who was 
called in to perform the operation decided, after a thorough exami- 
nation, that the woman's heart was too weak to stand a sufficient 
amount, of ether to make the operation possible. He suggested 
that the patient take a sufficient amount of whiskey to intoxicate 
her, and that then a very small amount of ether would suffice for 
the operation. This the woman refused to do unless her parish 
priest himself gave her the whiskey. After hearing her confession 
and giving her holy Communion, the parish priest gave her a suffi- 
cient quantity of whiskey to intoxicate her, and then the surgeons 
etherized her a little and successfully removed the tumor. Now it 
is asked : 

1. In what does inebriety consist? 

2. Is it ever lawful to make others drunk? 

3. What is to be said about this particular case? 
Drunkenness consists in drinking enough of whiskey or other 

alcoholic drink to deprive one of the use of one's senses and judg- 
ment. When a man has consumed so much alcoholic drink that it 
deprives him of the use of his reason, so that he is no longer able 
to distinguish between what is right and what is wrong, he is said 
to be theologically drunk. Complete drunkenness is, as a rule, a 
mortal sin. The malice of the sin does not consist merely in depriv- 
ing oneself of the use of one's reason, for that is allowed for suffi- 

62 



IS IT LAWFUL TO MAKE ANOTHER PERSON DRUNK? 63 

cient reasons, but in depriving oneself of the use of reason in an 
unnatural and brutal way, by the inordinate use of intoxicating 
liquor, and that without any sufficient cause or justification. Where 
there is a just and adequate cause, it is not a sin to deprive oneself 
of the use of reason for a time. Thus theologians generally admit 
that whiskey or other intoxicants may be used as a substitute for 
chloroform, or to counteract the effects of poison. To drink to ex- 
cess, but still not so as to lose the use of one's judgment, is, in itself, 
and aside from other considerations, a venial sin. But even such 
kind of drinking may become a mortal sin, either on account of the 
harm one does oneself or the harm one does one's family, or on 
account of the scandal such drinking causes, or other grave sins to 
which it leads. 

2. Is it a sin to make others drunk? 

Generally speaking, it is a sin to make others drunk, if we do so 
knowingly and willingly and without sufficient cause. But there 
are very exceptional cases when it is lawful to make another drunk. 
If we induce others to drink so that they become altogether drunk 
and lose the use of their reason for the time being, even though, 
while drinking, they are aware of what they are doing and of the 
result that will follow, we commit a mortal sin, because we cause 
our neighbor a grave spiritual damage, leading him into mortal 
sin. If our neighbor is not aware that he is being made drunk, 
then he does not commit a mortal sin and we do not cause him any 
spiritual harm; nevertheless, we cause him grave temporal harm 
by depriving him, without his knowledge, of the temporary use of 
his reason ; and that is a mortal sin. To induce another to drink 
until he is completely intoxicated, even though he knows what he 
is doing and that he is being made drunk, is to induce another to 
commit grievous sin, which is never allowed, unless it be for the 



64 THE CASUIST— VOL. IV 

purpose of preventing him from committing a greater crime, to 
which his mind is fully made up. Thus to prevent a man from com- 
mitting a murder, which he is thoroughly resolved to commit, we 
may lawfully make him drunk. In this case we choose the lesser 
of two evils and diminish the crime of our fellow man, which is 
doing good. To be the occasion of another person's drinking to 
intoxication is not the same as being the cause of his intoxication. 
Still it is not lawful even to be the occasion of another man's 
drunkenness, unless there be a good and adequate justification. 
Otherwise, by being the occasion even of our neighbor's intoxica- 
tion or inebriation, we commit a mortal sin against the love we owe 
our neighbor. 

To deceive another and to trick him into becoming drunk, is to 
commit a grievous sin against justice and also against the virtue 
of temperance, unless it is done to prevent some greater crime. 
Thus it is lawful to make an insane man drunk, if he is violently 
insane and dangerous and there be no other way of controlling 
him until he is returned to the insane asylum. 

3. As regards the case of this woman, the parish priest was 
justified in inducing her to take sufficient whiskey to intoxicate 
her, since it was done for a good and sufficient reason. The woman 
would have been perfectly justified in taking sufficient chloroform 
to anesthetize her; that is, to render her insensible and to deprive 
her, for a time, of the use of her reason. For the same cause she 
may take whiskey in order to produce the same state of insensibility, 
especially since her heart is too weak to support any other kind of 
anesthetic. 

Especially was this lawful, since she had received the Sacraments 
and was in the state of grace and prepared to die. And even 
though the parish priest placed the woman in danger of dying while 



IS IT LAWFUL TO MAKE ANOTHER PERSON DRUNK? 65 

intoxicated, he did not do anything wrong or unlawful, since many- 
people die on the operating-table or before coming out of the ether, 
and no one ever thought that, for that reason, it was wrong to put 
them under the anesthetic. The whole case hinges on the justifi- 
cation that there is for the temporary deprivation of the use of one's 
reason and judgment. All deprivation of the use of the reason is 
not wrong, but only such deprivation as is not justified by good 
and sufficient reasons. But to enable one to undergo a surgical 
operation, the use of whiskey is permitted by the theologians, just 
the same as the use of chloroform or other anesthetic, even though 
it deprives the patient, for a time, of the use of the reason and judg- 
ment. Therefore, this parish priest not only did not do anything 
wrong, in this instance, but did good. 



XV. IMPEDIMENT OF CRIME 

Titius and Bertha, both Catholics, were validly married and 
lived together for some years. Then Bertha divorced Titius and 
contracted a civil marriage with Sempronius, a non-Catholic. Some 
time after this Titius, the Catholic husband, died. Now Bertha 
desires to have her marriage to Sempronius, the non-Catholic, 
sanctioned by the Church. What is necessary to have this done? 

Answer. — The principal bar to the marriage of Bertha with 
Sempronius is the diriment impediment of crime. The Church 
has made or decreed that certain crimes shall act as a nullifying 
impediment to the subsequent marriage of those who commit them. 
These crimes are: 

1. Murder of a married person, when the wife or husband has 
brought it about by conspiring with another man or woman; 

2. Adultery by husband or wife with a third person, accompanied 
by a promise to marry that person after the death of the other 
spouse ; 

3. Murder and adultery together, as when a man and a woman 
commit adultery and one of them murders his consort in order 
to marry his accomplice in adultery. 

The reason of this law of the Church is to remove, as far as 
possible, the motive of such crimes. The Church wishes to punish 
those who inflict this injury on the innocent husband or wife, 
by making it impossible for them to marry one another. The 
Church thus protects the innocent consort by destroying the hope 
of future marriage of a guilty husband or wife with a third person, 

66 



IMPEDIMENT OF CRIME 67 

which hope might impel them to commit murder or adultery. 
This law is older even than the Catholic Church, for it goes back 
to the time of the Romans. The "lex Julia" forbade the marriage 
of adulterers, even though the first marriage were subsequently 
dissolved, and even though there had been no promise of a future 
marriage between the adulterers, and no murder had been committed 
with marriage in view. 

The early Church took over this legislation of the Romans and 
Pope St. Leo decreed : "Nullus ducat in matrimomum, quam prius 
polluit adulterio" and these words of St. Leo have become the 
rubric or title of the decrees or the canons against the marriage 
of adulterers or murderers, as contained in the corpus juris canontci. 

At first there was a general prohibition, nullifying future 
marriages of adulterers or murderers conspiring in the death of 
husband or wife. Gradually, however, certain restrictions of this 
general prohibition were introduced into the legislation of the 
Church. It became necessary that a promise of m-'rriage should 
accompany the adultery and conspiracy should characterize the 
murder, unless both adultery and murder were involved in the same 
case. This impediment is one of the oldest, therefore, of all the 
diriment impediments to marriage created by the Church. And 
the reasons that first impelled the Church to make these crimes a 
diriment impediment to marriage are still so powerful in the world 
to induce the Church to continue them in her legislation concerning 
the Sacrament of Matrimony. 

The crime of adultery, in order that it act as a diriment impedi- 
ment to the marriage of the persons guilty of it, must be coupled 
with a promise of marriage. 

"Licet autem in canonibus habeatur ut nullus copulet matrimonio, 
quam prius polluerat adulterio, et illam maxime, cui fidem dederat, 



68 THE CASUIST— VOL IV 

uxore sua vivente, vel quae machinata est in mortem uxoris." 
(Alexander III., cap. Laudabilem i, de convers. infid.) 

Adultery alone, or a promise of marriage alone, does not consti- 
tute the impediment ; the adultery must be coupled with the promise 
of marriage before the death of the innocent consort. It is imma- 
terial whether the promise of marriage precede or follow the act 
of adultery. The act of adultery, of which there is question here, 
is adultery in the eyes of the Church; that is, -at least one of the 
persons guilty of it must be at the time united in valid wedlock 
in the eyes of the Church. If the marriage be only valid in the eyes 
of the civil law, but invalid according to the Canon Law, no impedi- 
ment arises, because there is no adultery, but only fornication. 
Both parties committing adultery must be cognizant of the 
adulterous nature of the act. In other words, it is necessary that 
the adultery be formal on both sides. If one of the guilty parties 
is ignorant that the other one is a married person, then there is 
no formal adultery on that person's part, and therefore no impedi- 
ment to their future marriage after the death of husband or wife. 
It must be noted, in regard to the promise of marriage that is 
required to create a diriment impediment, that the promise to marry 
after the death of the innocent consort is the only marriage promise 
contemplated in the law. If one of the guilty parties promised 
the other to marry them as soon as they would obtain a civil divorce, 
no impediment arises, because there is no promise to marry post 
mortem conjugis. cf. Schmalzgruber, IV, 7, n. 9. 

If, instead of promising to marry, the parties guilty of the 
adultery actually get married, either before a civil magistrate or 
a non-Catholic minister of worship, then the matrimonium attcn- 
tatum, coupled with a previous or subsequent cohabitation, creates 
the diriment impediment. This has always been the law. It is 



IMPEDIMENT OF CRIME 69 

immaterial whether the civil marriage precede the adultery or is 
subsequent to it. The Congr. de Prop. Fide, Jan. 14th, 1844, decreed : 

"Contrahere autem seu attentare matrimonium de praesenti est 
inire nuptias, utique invalide, per verba de praesenti vel per aliquod 
aliud signum quod consensus promissionem includat: nihil tamen 
refert an adulterium praecesserit attentationem matrimonii vel 
subsequatur : ut assumptio concubinae seu potius adulterae ha- 
beatur in casu ut vera matrimonii attentatio, opus est ut includat 
promissionem matrimonii sive de praesenti, sive de futuro." 

It is necessary, however, that both the civil marriage and the 
cohabitation or adultery should take place before the death of the 
innocent consort, ante mortem alterms conjugis. If two persons, 
one or both of whom are already validly married to other persons, 
attempt to get married civilly and, failing in the attempt, give up 
the idea of marriage and afterwards commit adultery, there will be 
no diriment impediment on this score to their future marriage. 
It is required that both parties to the second marriage have knowl- 
edge of the previous marriage. It may be that at the time of the 
second marriage the woman to it did not know that the man she 
was marrying had a wife living, although divorced. In that case, 
if she continues the relation after learning of the divorced wife, 
she contracts the impediment and may not marry validly the man 
with whom she is living, even after the divorced wife's death. 

It follows, therefore, that all those persons, who having been 
validly married, afterwards obtain a civil divorce and enter into 
new marriage arrangements, are barred from ever contracting a 
valid marriage between them on account of the diriment impedi- 
ment criminis adulterii. It is hardly necessary to add that one or 
both parties to the adultery must be validly baptized, otlierwise 
no impediment is incurred, as the impediment of crime is of 



yo THE CASUIST— VOL IV 

ecclesiastical origin. It sufRces that one of the parties be baptized, 
for the baptized person communicates his inability to marry to 
the unbaptized person, propter .unitatem contractus. 

Bertha and Sempronius cannot be married in the Church, unless 
a dispensation from the diriment impediment of the crime of 
adultery be first procured. If the civil marriage contracted by 
Bertha and Sempronius was before a non-Catholic minister, Bertha 
is excommunicate and requires a second dispensation. The same 
holds good if the civil marriage was contracted before a justice of 
the peace. Thirdly, if Sempronius was never validly baptized, a 
dispensation super impedimento disparitatis cultus is necessary; 
otherwise a dispensation from mixed religion will be necessary 
to make the marriage licit. 



XVI. CHRISTIAN BURIAL OF MASONS 

John was married outside the Church. His wife and children 
were Protestants. For years he did not practise his rehgion. When 
sick, a priest from a religious community was called, who heard 
his confession, gave him holy Viaticum and sent for the sick man's 
parish priest to administer Extreme Unction and to look after him 
in the future. Two or three months later, the sick man dies. It 
was arranged to have the funeral from the church ; but in the 
death notice of an evening paper the parish priest learns that the 
man belonged to the Masons. 

1. Must a Mason, repenting on his death-bed, give up all his 
paraphernalia, and make a written public statement that he re- 
nounces the lodge? 

2. Was the confessor obliged to notify the parish priest of this 
fact? 

3. Did the parish priest do right in burying this man from the 
church ? 

Answer. — In order to absolve a dying Mason, the theologians 
generally require that the dying Mason shall break off all communi- 
cation with the Masons and that he shall hand in his formal 
resignation to the master of his lodge. It is never lawful for a con- 
fessor to absolve a Mason, as long as the Mason is resolved to 
frequent the lodge. This view is held on the authority of the Con- 
gregation of the Inquisition, which, when asked about a case like 
this, answered, July 5, 1837 > "J^^ta exposita, non licere." In some 
circumstances, it is even required that the ]\Iason desiring absolution 

71 



72 THE CASUIST— VOL IV 

shall show a written document from the master of the lodge, 
acknowledging the receipt of his resignation. "Immo pro diversis 
adjunctis aliquando exigitur, ut exhibeatur scriptum praefecti hujus 
sectae, quo acceptae hujus declarationis authenticum detur testi- 
monium." (Lehmkuhl, II, 1226). 

It is generally admitted, however, that this withdrawal from the 
Masons may be deferred for a time, ahrupta omni communicatione, 
atque pecuniae contributione, for very grave reasons, such as for 
instance, the fear of being killed or something equivalent. In this 
case he may defer handing in his resignation, provided that in the 
meantime he suffer no spiritual loss and render no aid to the lodge, 
and remove whatever scandal his connection with the Masons may 
occasion. This is gathered from the response of the Holy Office, 
March 7, 1883. A money loss would not be a sufficient cause 
for deferring one's withdrawal. We must call attention here to an 
answer of the Holy Office, January 18, 1896, regarding the three 
orders, vis.; Odd Fellows, Knights of Pythias and Sons of Tem- 
perance. With regard to these three orders, the Holy Office has 
decided that if immediate resignation from any of these three orders 
would involve a serious money loss; i. e., of life insurance, then 
the resignation may be postponed, provided ut interim a quavis 
sectae communione et a quovis interventu, etiam materiali, ab- 
stineatur. In these three orders the loss incurred by immediate 
withdrawal would be a money loss ; therefore not even material 
communion with the order is allowed. The loss or damage which 
immediate withdrawal from the Masons contemplates is death or 
something equivalent, and therefore material cooperation for a time 
or indefinitely may be justified. As such danger does not threaten 
in the United States, it can scarcely be urged as a reason for de- 
ferring one's resignation from the Masons. 



CHRISTIAN BURIAL OF MASONS 



73 



The faculties which the Holy See grants to American bishops 
and through them to American priests, to absolve Masons desiring 
to return to the Church, have certain restrictions, i. The penitent 
must resign from his lodge and must forswear the Masons. As 
said above, it is not always necessary that this resignation should 
be in writing or be publicly known. Questioned on this point, the 
Holy Office answered, Aug. 5, 1898, "ut sectam saltem coram con- 
fessario ejurent, seu detestentur, reparato scandalo eo meliori modo, 
quo fieri potest." 

2. That the penitent hand over to the confessor who will forward 
them to the ordinary, all books, documents and regalia having 
relation to the order. If this is impossible, the penitent himself 
must destroy them. 

3. The penitent must make known to the ordinary of the diocese 
the secret leaders and officers of the sect. Where the officers are 
publicly known, as in the United States, this third clause does not 
oblige. 

The case. i. Must a Mason, repenting on his death-bed, give 
up all his paraphernalia and make public a written statement that he 
renounced the lodge? Under ordinary circumstances, the penitent 
must, as said above, hand in to the master of the lodge his written 
resignation, and should show to the confessor a written receipt or 
acknowledgment of the receipt of the same from the lodge master. 
(Lehmkuhl, H, 1226 ; Genicot, H, 597, etc.) If by doing so he should 
place his life in jeopardy or expose himself to some other equally 
grave harm, then he may be excused from doing so, provided he 
breaks off all intercourse with the lodge and discontinues all pay- 
ments of dues, etc. In the case submitted, there can scarcely be 
said to be any such danger in resigning from the lodge, and there- 
fore the penitent should have sent in his written resignation. There 



74 THE CASUIST— VOL IV 

is no obligation to make public such resignation, as the fact that 
the man gets the Sacraments is sufficient evidence of it. Also he 
should have handed over to the confessor his books, etc., dealing 
with masonic matters. All this the parish priest must suppose that 
the confessor looked after, and therefore it did not concern the 
parish priest. 

2. Was the confessor obliged to notify the parish priest that he 
had attended to these matters? Strictly speaking, he was not. It 
might have been better had he done so, with the permission of the 
penitent, but de jure all that the confessor was obliged to do was 
to say to the parish priest, that the man had received the Sacrament 
of Penance and the holy Vaticum. The confessor must be sup- 
posed de jure to have done everything that the law of the Church 
requires before he absolved the man. 

3. Did the priest do right by burying the man from the church? 
We think he did. What we do not quite understand is, how the 
parish priest, after giving the dying man Extreme Unction, did 
not see, or at least seems not to have seen or visited, him again up to 
the time of his death, two or three months later. Still, if the 
parish priest had no conclusive evidence that the penitent after re- 
ceiving the last Sacraments, had renewed his affiliation with the 
Masons, he was justified in burying him from the church. 



XVII. THE MARRIAGE IMPEDIMENT OF ERROR 

George married Emma, because he thought she had considerable 
money, and that she was a good woman and of real refinement. 
George was a- Catholic and Emma was a Methodist. They were 
married by the Methodist minister. This happened before the 
Ne temere decree went into force at Easter, 1908. After the 
marriage, George discovered that ^^n^^^a ^^^ rio means of any kind, 
and that she was an adventuress and a woman of very loose life. 
As soon as he discovered this he left her, and she went off with 
another man. George sued for, and obtained, a divorce in the 
civil court. He now wishes to have the Church annul this marriage. 
His grounds are that he was completely deceived by this woman, 
that he thought he was marrying a wholly different person and that 
he never would have married her had he not been thoroughly 
deceived as to who and what she was. Moreover, there is no evi- 
dence that she was ever baptized. She was more a nominal 
Methodist than anything else. Is there any hope that the Church 
might annul this marriage? 

Answer: — Before discussing this case, we must explain briefly in 
what the impediment of error consists, in as far as it acts as a 
destructive bar to a valid marriage. In the Corpus Juris Canonici, 
Gratian says, in his decree: 

"Non omnis error consensum excludit, sed error alius 
est personae, alius fortunae, alius conditionis, alius qualitafis. 
Error personae quando hie putatur esse Virgilius, et est Plato. 
Error fortunae est, quando hie putatur dives qui est pauper. 
Error conditionis quando putatur esse liber, qui est scrvus. 
Error qualitatis quando putatur esse bonus qui est maUis. 
Error fortunae et qualitatis conjugii consensum non excludit. Error 

75 



76 THE CASUIST— VOL IV 

vero personae et conditionis conjugii consensum non admittit" 
(c. 29, q. I). 

In Canon Law, by the condition of a person is meant, not a 
person's social, financial or moral condition, but whether a person 
is a freeman or a slave. Again the Canon Law distinguishes two 
kinds of error, as affecting marriage: Error juris, i. e., when one 
is in error or mistaken concerning the essential qualities of mar- 
riage, its indissolubility, fidelity, unity, etc.; and error facti, when 
one is mistaken concerning a person's social, moral or financial 
position. In the case here submitted, it is evident that we have to 
do with an error of fact George was mistaken concerning Emma's 
moral and financial condition, that is, about her qualities. Now an 
error of fact, concerning a person's qualities, diriments marriage in 
three cases: 

1. If one marry a slave, thinking she is a free woman; 

2. If the condition is made a part of the contract, and that 
expressly ; v. g., if George says expressly : "I marry Emma only on 
the condition that she is a good woman or a rich woman" ; 

3. When the error concerning another's qualities affects that 
individual's person, redundat in personam; v. g., a man wants to 
marry the oldest daughter of a family, but not knowing her per- 
sonally, he marries this woman here present, believing her to be 
the oldest daughter. 

In these three cases, the error is said to be a substantial error 
of fact, and diriments the marriage. All other mistakes or errors 
concerning a person's qualities or condition do not diriment a 
subsequent marriage, because they do not affect the substance of 
the marriage contract, but are considered a side-issue. They render 
the consent given in the marriage more easy, more prompt, but 
they are not the cause of the consent, or rather the consent is not 



THE MARRIAGE IMPEDIMENT OF ERROR 



77 



primarily concerned with them, but with the substance of the 
marriage contract, and only secondarily with them. In our case, 
if George had known, when he married Emma, that she was a 
bad woman, he never would have married her. Granted. But 
that intention is only an interpretative intention, that is, if George 
had known, he would not have married. An interpretative inten- 
tion is no intention. The only intention George had, as a matter 
of fact, when he married Emma, was to marry Emma. The 
Church could, if she wished, make such deception as practised by 
Emma a diriment impediment. The civil law voids many con- 
tracts, when procured by fraud. But the Church expressly ab- 
stains from doing so, in order not to open the door wide to much 
litigation and to endless doubts and dissensions. 

The case. George's error concerning Emma's qualities when he 
married her in no wise affects the validity of his marriage. Many 
similar cases have been referred to the Holy See, and the invari- 
able answer has been: valet matrimonium. What was George's 
chief and principal purpose when he accompanied Emma to the 
Methodist church? To contract a valid marriage with her. That 
he thought she was rich and good was quite a secondary considera- 
tion, a minor issue, in no way affecting or interfering with his 
main purpose, to wed Emma. If he had known the truth, he would 
have done otherwise. Certainly he would. But as a matter of fact 
he did not know the truth, and de facto, he had no intention of 
doing otherwise. There was no error personae vel conditionis; 
there was only an error fortunae et qualitatis. And that kind of an 
error does not diriment marriage. 

As far as any error was concerned, therefore, there is practically 
no hope that the Church will declare George's marriage to Emma 
null and void. 



78 THE CASUIST— VOL. IV 

As regards an annulment on the grounds that Emma was un- 
baptized at the time of her marriage, and therefore was barred 
from a valid marriage with George, propter disparitatem cultus, 
they having obtained no dispensation, there is little prospect that 
an annulment would be granted on that score. If it could be proven 
beyond doubt, that Emma had never been baptized, then, of course, 
the marriage is null and void from the beginning. But after a 
marriage, that is never presumed or taken for granted. On the 
contrary, every such marriage will be held to be valid, until, de 
facto, it is proven, beyond reasonable doubt, that it was invalid. 
And in this connection, it must be observed, that what would be 
considered "beyond reasonable doubt" by our civil courts, would 
not be considered so, always, by the Church. In these matters, 
the Church has her own standards, which, particularly in this 
matter, differ considerably from the standards followed by our 
civil law courts. If Emma belonged to a sect that did not believe 
in baptism nor practise it, she would naturally have to be considered 
unbaptized. But she was a member, and evidently born and 
brought up in a sect that believes in and practises baptism, and 
therefore post factum, that Is after her marriage, and in order 
precisely, to make the marriage valid, Emma will be looked upon 
by the Church authorities as having been validly baptized In the 
Methodist Church and therefore validly, although illicitly, married 
to George, and there is no hope of an annulment on this ground 
either, unless more evidence be produced, to prove beyond reason- 
able doubt that Emma was never validly baptized. As far as a 
new marriage Is concerned, In the Catholic Church, George will 
have to wait until Emma dies, or else produce evidence, sufficient 
in the eyes of the Church, to prove that Emma, at the time of her 
marriage to him, was unbaptized. 



WHAT RISK MUST A PRIEST TAKE? yg 



XVIII. WHAT RISK MUST A PRIEST TAKE TO GIVE 
THE LAST SACRAMENTS? 

Are all priests bound, even at the risk of their lives, to hear the 
confessions of the dying, and to administer to them the Holy 
Viaticum and Extreme Unction? 

What is the nature and extent of this obligation? 



Answer. We must distinguish between priests who are charged 
with the cure of souls, and priests who are not so charged. Among 
the priests who are charged with the cure of souls are to be 
numbered all bishops, pastors and curates, in regard to those who 
are immediately subject to their jurisdiction. The bishop who has 
a diocese, whether he be the ordinary, coadjutor or assistant bishop, 
is responsible for the salvation of all the souls committed to his 
care. The pastor of a parish and his assistants are responsible 
for the salvation of the souls of the parish. A bishop who has no 
diocese and a priest who has no parish, who have no souls 
committed to their care for whose salvation they are responsible, 
are known as sacerdotes simplices; they are not bound in the same 
degree as pastors of souls, to risk their lives for the salvation of 
others. Among pastors of souls must be numbered also, the supe- 
riors of religious houses in regard to those under them ; the chaplains 
of convents, hospitals and asylums, in regard to the inmates of such 
institutions. 

Now it can be held as a general principle, that all priests who 
are charged with the cure of souls, are bound, under pain of mortal 
sin, to succor all those committed to their care and to administer 
to them the last Sacraments whenever such souls are in grave need, 



8o THE CASUIST— VOL. IV 

in gravi necessitate, of the last Sacraments. Priests who are not 
charged with the cure of souls are not bound to give the last 
Sacraments to the dying, except the dying be in extreme need, in 
extrema necessitate, of the Sacraments ; that is, unless the priest 
comes to their assistance, the dying man or woman will surely 
lose salvation. 

The parish priest, therefore, and his assistants are bound, even 
at the risk of their lives: 

1. To hear the confessions of the dying, unless they are sure that 
the dying man is in the state of grace. Even though the pastor 
or curate be sure that he himself will die as a result of hearing the 
dying man's confession, nevertheless he must hear the confession. 

2. According to some of the great theologians, for instance, 
Suarez, Sylvius, etc., a parish priest, or any priest charged with 
the cure of souls, is bound to risk his life to administer the Holy 
Viaticum to his subjects, even though they have made their con- 
fession and are in the state of grace. Only in case of sure death 
to the parish priest, or very serious damage to the community at 
large, would these theologians excuse a priest from administering 
Holy Viaticum to the dying. (Suarez, HI, disp. 44, §3. Sylvius, 
supp. q. 32, Art. 3.) 

Suarez says : 

"In hoc Sacramento, datur quaedam necessitas moralis, vel quia 
auxilium quod per tale Sacramentum datur, moraliter necessarium 
censetur ad perseverandum in justitia per poenitentiam recuperata, 
et vincendas tentationes illo tempore occurrentes, vel etiam quia 
potest aliquando conferre gratiam primam quam imperfecta poeni- 
tentia prius non contulit. Quibus etiam accedit fructus essentialis 
ipsius Viatici, qui magni momenti est, et praeferendus multis incom- 
modis temporalibus. Ex quibus omnibus simul sumptis et prudenter 



WHAT RISK MUST A PRIEST TAKE? 8i 

consideratis, exurgit quaedam necessitas, quae licit not sit extrema, 
videtur tamen esse valde gravis." 

St. Alfonsus calls this view of Suarez, valde gravem. Other 
theologians, however, deny the weight of the reasons brought for- 
ward by Suarez, and maintain that there is no grave obligation to 
administer Viaticum in articulo mortis at the risk of one's life. St. 
Alfonsus calls their opinion very probable. In response to the 
prayers of St. Charles Borromaeo, Archbishop of Milan, Gregory 
XIII., 1576, declared that the parish priests of Milan and their 
curates, and others having the cure of souls in that diocese, were 
not obliged sub gravi to administer to those infected with the 
plague any other Sacraments than those necessary for salvation, 
namely, Baptism and Penance. 

Fagnani says that this declaration of the Congregation of the 
Council to St. Charles was never published; but later on, when a 
decision of St. Antoninus, Archbishop of Florence, 1459, '^^^^ 
found, requiring pastors to administer the Sacraments, the question 
was again submitted to the Holy See. The Holy See, after con- 
sulting the Congregation of the Council, decided that no general 
rule should be made in the matter, but that a letter should be sent 
to St. Charles, stating that during the plague pastors were obliged, 
in conscience, to remain at their posts and to administer Baptism 
and Penance to the parishioners. The Holy See approved of this 
letter to St. Charles Borromaeo, December 8, 1576. 

Pope Benedict XIV. says that it can not be surely established 
that these letters to St. Charles were ever countersigned in Rome 
or ever forwarded to St. Charles, since there is no record of them 
to be found in Rome or Milan, and that therefore no valid argument 
can be deduced from them. 

3, There is no grave obligation for a parish priest to administer 



82 THE CASUIST-VOL. IV 

Extreme Unction to the dying, if by so doing he should seriously 
risk his life. The reason is, because Extreme Unction is not neces- 
sary for salvation and it is generally given only after the Sacraments 
of Penance and Viaticum have been administered; that is to say, 
only after the dying man's salvation has been made morally certain. 
Fr. Konings, however, well remarks that if the dying man had not 
been to confession for a long time, and was absolved only con- 
ditionally because he is unconscious, there would be a grave 
obligation in that case to give Extreme Unction, because it might 
be necessary for salvation, since Extreme Unction, per se, 
secimdario, gives sanctifying grace to those who have only attrition 
for their sins, and who can not now make a confession. 

We come now to the second question: What obligation have 
priests, who have no cure of souls, to risk their lives in the admin- 
istration of the Holy Viaticum and Extreme Unction? They are 
under no grave obligation to do so. Some have even gone so far 
as to say that such priests could never be held suh gravi to admin- 
ister even the Sacrament of Penance, since the dying man can, 
strictly speaking, help himself, if he be in mortal sin, by making 
an act of perfect contrition. But it is truer to say that whenever 
it is likely that the dying man is in mortal sin, and there is no likeli- 
hood that, if left to himself, he will make an act of perfect con- 
trition, then the simplex sacredos, who is not charged with the cure 
of souls, is bound suh mortdi to risk his life to hear the dying 
man's confession, since the latter is then truly constitutus in 
extrema necessitate spirituali and we must succor him even at the 
sacrifice of our life. The same must be said in regard to the 
administration of Extreme Unction, in cases where the dying are 
pretty surely in mortal sin and are unable to make any kind of a 
confession. 



WHAT RISK MUST A PRIEST TAKE? 83 

As regards the nature of this obligation, in the case of those 
having the cure of souls, it is an obligation of justice, which they 
contract ipso facto when they assume the office of parish priest, 
and obtain their living thereby. The obligation resting on a 
simplex sacerdos to hear the confession of or anoint the dying, is 
an obligation of charity, for by charity we are bound to succor our 
neighbor in great need, especially if the need be in the spiritual 
order. Both these obligations are of a grave character, binding 
under pain of mortal sin. 

We have treated this question from a standpoint of what is 
rigorously, siih mortali, required by strict justice or charity. We 
should blush to think that there were any Catholic priests who 
would measure their efforts for the salvation of souls by the 
requirements of strict justice and not by the claims of love that 
we owe the little ones of Christ. 



XIX. A PASTOR'S JURISDICTION REGARDING 
MARRIAGE. 

John and Mary wish to be married. They were both born 
and brought up in the same parish in Brooklyn, where their 
parents still reside. For the last two years, John and Mary have 
been employed in the same hotel in New York and have lived 
there. They have rented an apartment in New York, close to 
the hotel where they are employed, and have fitted it up, pre- 
paratory to living there after their marriage. Now they both 
desire very much to be married in their home parish in Brook- 
lyn. Is it necessary for them to get the permission of the 
pastor of the parish in New York, where the hotel is situated, 
where they are employed, and where they have lived for two 
years and expect to live permanently after their marriage? Or 
may they be married in their home parish in Brooklyn, without 
any permission from the New York pastor? 

Answer. John and Mary may be married in their home parish 
in Brooklyn, without any permission from the pastor in New 
York, in whose parish they have been working for the last two 
years, and where they intend to locate permanently, as soon as 
they are married. That is to say, they may do so, if after 
coming of age, or being quite independent of their parents, they 
did not formally give up the home of their parents and acquire 
a new home, strictly speaking, somewhere else. Children do not 
lose their right to the home of their parents, unless of their own 
free will, being sui juris, they either formally or legally re- 
nounce it, or acquire a new domicile, within the meaning of the 
Canon Law, somewhere else. The parish of the parents of John 

84 



A PASTOR'S JURISDICTION REGARDING MARRIAGE 85 

and Mary, in Brooklyn, is, properly or canonically speaking, the 
parish of John and Mary, as long as they do not renounce it 
or abandon it, or acquire a new canonical domicile in another parish. 

Once John and Mary are married, they necessarily become 
sui juris, and when they set up an establishment of their 
own in New York, they necessarily lose their domicile in Brook- 
lyn. It is a common axiom of the Canon Law, that servants 
acquire only a quasi-domicile in the parish of their employer, 
and that they do not forfeit their rights to the domicile of their 
parents by acquiring a quasi-domicile in the parish of the parties 
who employ them. 

As soon as children are of age, or sui juris, as the Canon 
Law has it, they may, if they wish, renounce the home of their 
parents. 

They may do this either formally, that is, by an explicit 
and formal renunciation of their parents' home, or they may 
do it constructively, by acquiring a home, or legal domicile, some- 
where else. But in either case it is necessary: 

1. That the children be sui juris, that is, legally competent 
to care and answer for themselves; if only one be sui juris, the 
one who is not sui juris retains the home of the parents as a 
domicile ; 

2. That the renunciation of the parents' home be formal and 
explicit, which will be the case, if the children formally give up 
for good the home of their parents, or if they establish a new 
home for themselves elsewhere, and thereby forfeit their rights 
to the home of their parents, as a legal domicile. 

It cannot be held in Canon Law that there has been a formal 
renunciation by children of the domicile of their parents by 
the mere fact that the children have left the home of their parents 



86 THE CASUIST— VOL. IV 

to work elsewhere, even though the children have no intention or do 
not think of returning home in the event that they should give up 
their work or employment. 

Nor can it be maintained that John and Mary, by hiring and 
furnishing an apartment in New York, to be occupied by them 
after their marriage, thereby acquired a canonical domicile in 
New York. 

To rent a house, or even to buy a house, with the intention 
of living in it, is not sufficient to acquire a domicile, as such 
an act does not, of itself, include an intention of perma- 
nently living in the house or acquiring a domicile there. To 
acquire a legal, canonical residence, it is necessary, not only to 
hire or buy a house or apartment, but also actually to live in 
it and to intend to live in it long enough to acquire a legal res- 
idence. 

That John and Mary lived in the hotel in New York where they 
were employed, did not give them a true domicile there, but only 
a quasi-domicile. Now a quasi-domicilium does not destroy a 
real canonical residence which John and Mary have in the home 
of their parents in Brooklyn. The only way that John and 
Mary could have acquired a legal domicile in the New York 
parish, within whose limits the hotel is situated, where they are 
employed, would have been to have renounced their claims to 
their parents' home in Brooklyn and taken up their permanent 
residence in New York with the intention of settling there for 
good, they both being of such age and condition as would render 
them competent, in the eyes of the Canon Law, to do so. That they 
had such an intention or were so minded is a fact that the 
law does not presume, but requires to be proved. From the 
moment that it could be proved, in foro externo, that John and 



A PASTOR'S JURISDICTION REGARDING MARRIAGE 87 

Mary had given explicit expression to their will and purpose 
to abandon their domicile in their parents' home in Brooklyn and 
acquire a true domicile in New York, from that moment, the argu- 
ment drawn from the fact that service in New York gave them 
only a quasi-domicile in New York, and left them a real domicile 
still in their parents' home in Brooklyn, would fall to the ground. 
The fact that they are employed in New York, and that their 
condition is one of servants, conditio famulatus, would not pre- 
vent them from acquiring a real domicile in New York. 

Therefore, in the case as submitted, it is lawful for John and 
Mary to get married in their home parish in Brooklyn, and no 
permission for this is required from the New York pastor in 
whose parish is located the hotel where John and Mary are 
employed. 

Only in case they have voluntarily and explicitly renounced 
and abandoned their residence in Brooklyn, being competent to do 
so, would it be unlawful for them to be married in the parish 
of their parents in Brooklyn. But this cannot be supposed or 
taken for granted or construed from the fact of their service 
in New York, but must be proven beyond doubt. Another argu- 
ment might be added to the above, and it is this. In this country 
it is customary for a girl to be married from the home of her 
parents. This is a reasonable and laudable custom, and of itself, 
in the present case, would justify Mary in being married from 
the home of her parents in Brooklyn, without the formality of 
a permission from the pastor in New York. On the other hand, 
it is quite clear that since John and Mary have acquired a quasi- 
domicile in New York, they could be married from the New York 
parish, where they are employed, without a permission from their 
parents' pastor in Brooklyn. 



THE CASUIST— VOL. IV 



XX. THE NUMBER OF SINS CAUSED BY ENVY 

Mary and Anna had conceived a mortal grudge for each 
other. It grew out of envy and jealousy. For a long time they 
kept it in check, as far as any public outward manifestation of 
it was concerned. However, one Sunday, as they were both 
leaving the church, they met, and immediately began to abuse and 
vilify each other, before all the people, and finally came to blows. 
Of course it caused a scandal and everyone was greatly shocked. 

How many sins did these two women commit, both as regards 
the kind and the number of the sins? 

Answer. There can be no doubt but that these two women 
sinned against the love they owed each other. Envy and jeal- 
ousy are sins against charity. Charity is a virtue that disposes 
one to love one's neighbor, to wish one's neighbor well, and to 
do him good. Envy is a feeling or sentiment of grief or dis- 
content and uneasiness at the sight of another's excellence or 
good fortune, coupled with a certain degree of hatred or dislike 
{odium inimicitiae) for such a person, and a desire to possess 
equal advantages. Envy and jealousy are directly opposed to 
charity and are therefore sinful. Now since Mary and Anna 
both harbored, for a long time, feelings of envy and jealousy, these 
sins of envy and jealousy must have been multiplied many times, 
since they were peccata mere interna, or sins of the heart, or 
of the will. These internal sins, or sins of the heart, are said to 
be multiplied as often as the evil feeling or desire is expressly 
or tacitly retracted and again revived and consented to. In fact, 
it may be said that internal sins, or sins of the heart are multi- 



THE NUMBER OF SINS CAUSED BY ENVY 89 

plied as often as they are physically interrupted, no matter even 
if the interruption be involuntary. In this way sins of the heart 
are multiplied as often as they are physically interrupted, no mat- 
ter from what cause, so that there will be as many sins numerically, 
as there are interruptions. An exception is made for the case 
where many acts are prompted by the same burst of passion; in 
that case the several actions, following quickly upon one an- 
other, are united or rather unified by the one cause from which 
they proceed, namely the same outburst of passion. But now, 
ordinarily speaking, no outburst of passion lasts more than two 
or three hours at most, and therefore Mary and Anna must have 
multiplied their internal sins of envy and jealousy, at least sev- 
eral times a day. In practice, however, it will suffice if these 
women indicate the length of time that they indulged these sin- 
ful feelings against one another. For instance, it will be suf- 
ficient if they confess to having harbored sentiments of envy or 
hatred or jealousy for one month, or two months, etc. For 
by so doing, they make it sufficiently clear to the confessor, just 
about what is the number of these sins that they committed. Be- 
sides, it would scarcely be possible to be more exact or explicit 
in matters of this kind. The Council of Trent says that mortal 
sins must be confessed, according to kind and number, prout sunt 
in conscientia, at the time of confession. It is the conscience 
of the sinner that eventually must number his sins or keep count 
of them. But, usually, the sinner is ignorant of those theological 
distinctions, regarding number and kind and the method of dis- 
tinguishing them. These rules must be applied to the sinner ac- 
cording to his special circumstances. We take it for granted that 
these two women had no intention from the beginning of making 
any external demonstration or of coming to blows. Therefore 



go THE CASUIST-VOL. IV 

as often as they desisted from these thoughts of envy and hatred, 
they multiplied these sins numerically. Did they intend from the 
beginning to come to blows, an interval of time would be required 
to multiply actus internos cum proposito externam actionem ponendi. 

So much for the internal sins of the heart that Mary and Anna 
committed by envy and jealousy. Let us take up the sins of act, 
or the external sins that Mary and Anna committed on that Sun- 
day morning, when with much mutual abuse and vilification and 
many imprecations, they engaged in a physical encounter before 
the whole congregation. How many different sins did they com- 
mit on this occasion? Sins, of course, of action, external sins. 
Were they many in number and many in kind? 

They seem to have committed only one sin against charity, by 
anger. St. Thomas says that sins of the tongue are multiplied 
according to kind or species, not by reason of the things that are 
said, but rather by reason of the purpose for which they are said. 

"Species peccati oris magis attenditur ex fine, quam ex ma- 
teriali objecto." (2-2 q. 74, a. 2.) 

In the case before us, the abuse and imprecations and maledic- 
tions, all proceed from the same outburst of passion, from the 
same explosion of anger and hatred, and are all meant, not as so 
many separate and formal evils which they mutually call down 
upon one another's head, but rather as evil in general which they 
wish one another, not attending to the particular kinds of evil 
that their words imply, and they constitute one act along with 
the physical act of beating one another, which is the principal act. 
Whilst, therefore, physically speaking, all these different acts of 
abuse and contumely and physical encounter, constitute separate 
physical acts; nevertheless, morally taken, they form but one act, 
containing but one kind of moral malice. If these women belong 



THE NUMBER OF SINS CAUSED BY ENVY 91 

to the rank and file of the community, there will be no question 
of loss of honor or defamation, because the spectators do not be- 
lieve what these hurl at one another, knowing that it is said in 
the heat of passion, etc. 

But did they not give grave scandal to the community by such 
conduct on Sunday, in the sight of the whole parish? 

If there were non-Catholics in the community, who witnessed 
this scene, or who learned of it immediately, with all its disgust- 
ing details, of course there would be given serious scandal. For 
such conduct necessarily leads the non-Catholic to despise the 
Catholic religion. But if there were only Catholics present, or 
in the community, then we should have to consider whether they 
would be led into sin by such a scene. Scandal is not necessarily 
given because a sin is committed before others. A sin committed 
before others is scandalous only when it will very probably lead 
the others into sin also. The sinful action may shock others 
or outrage their feelings, but as long as it does not lead them into 
sin, it is not scandalous. Now a community of Catholics might 
witness such a scene as the above, and never be led into any 
sin by it. In that case no scandal is given. They might feel bad 
about it and shocked and humiliated, but they would not be 
scandalized. 

To sum up therefore, Mary and Anna, by harboring ill will 
and envy and hatred toward one another, committed a grave sin 
against charity, and they multiplied their sin several times daily, 
all during the time that they entertained the grudge for one 
another. 

Secondly, when they came to blows, they committed a new 
sin against charity, with which the abusive language and epithets, 
that immediately preceeded it, constitute one moral act. This 



92 THE CASUIST— VOL. IV 

they will sufficiently confess by saying that they quarreled and 
came to blows. 

The various evils that they wished each other, did not consti- 
tue a new kind of sin, nor was there any defamation of char- 
acter or grave scandal. 



EXECUTING THE PROVISIONS OF A WILL 93 



XXI. EXECUTING THE PROVISIONS OF A WILt 

Titius, being seriously ill and having no near relatives, made a 
will and left all that he possessed to Cajus, a priest, and an intimate 
friend of his for many years. Titius, however, added certain pro- 
visions to his will, which he required Cajus to fulfill. First of all, 
Cajus was to say one hundred Masses for the repose of Titius' soul. 
Secondly, Cajus was to give one thousand dollars to a certain orphan 
asylum. Lastly, Titius had made a vow to make a pilgrimage to 
the shrine of Our Lady of Martyrs at Auriesville and to present 
to the shrine a gold chalice to be used on the altar of the shrine, 
and as he had not fulfilled this vow, he required Cajus to make the 
pilgrimage in his name and to make the offering of the gold chalice. 
After Titius' death, Cajus faithfully executed these provisions of 
the will, except the one regarding the pilgrimage and the chalice. 
With regard to these Cajus claimed that as they were vows, they 
were something personal to Titius and binding only on Titius, and 
did not descend with the inheritance, and therefore could not be 
binding on him, as Titius' heir. Was Cajus right, or should he have 
also fulfilled the provisions of Titius' will regarding the pilgrimage 
to Auriesville and the gift of a gold chalice ? 

Answer. Cajus did not do right in not making the pilgrimage 
and presenting the gold chalice to the shrine. Cajus' reasoning that 
as vows are personal, they bind only the person making them and 
do not descend with the inheritance, does not apply to his case. His 
reasoning is partly false, and what is right in it, does not apply to 
his case. He should have fulfilled the last provisions of Titius' 
will, in the same manner that he fulfilled the others. Titius' vow to 
make the pilgrimage and to present a gold chalice to the shrine at 



94 THE CASUIST— VOL. IV 

Auriesville was a mixed vow, votum mixtunt, part of it being real, 
and part personal. The personal part of the vow was the pilgrimage 
to Auriesville. That is called the pars personalis of the vow. The 
pars realis or real part of the vow, was the presentation of a gold 
chalice to the shrine. Now as regards this latter part of the vow, 
the pars realis, the offering of the gold chalice in this instance, there 
is no doubt in theology but that vota realia do descend to the heirs 
and are to be executed by the heirs, strictly and in justice, in as far 
as the estate of the deceased testator will allow of. This is the 
uniform teaching of theologians and canonists. The reason of it is 
plain. Real vows, vota realia, that is, vows to make donations or to 
turn over property, etc., adhere to the property or temporal goods 
and chattels of the person making the vow, and therefore if such 
vows are not fulfilled before the death of the person making them, 
tney adhere to the inheritance, and with it they descend to the 
heirs as a real obligation affecting the property of the testator, and 
are to be fulfilled by the heirs, in strict justice, as for value received 
by virtue of an implicit contract. By accepting, of his own free 
will, the inheritance, the heir accepts voluntarily not only the advan- 
tages and emoluments of the descended estate, but also its debts and 
obligations. It is simply a case of the bitter going with the sweet. 
Therefore, Cajus, being the universal heir of Titius, that is, inherit- 
ing all of Titius' property, and of his own free will accepting the 
same, becomes liable in conscience for all the real debts and obliga- 
tions attaching to the inheritance ; therefore, for the presentation of 
a gold chalice to the shrine of Our Lady at Auriesville. Indeed, 
Cajus would be bound to make this gift to Auriesville, even though 
Titius had made no provision for it in his will, or even though Titius 
had freed Cajus from the obligation. Because just as Titius could 
not liberate himself from his vow, once he had made it, so neither 



EXECUTING THE PROVISIONS OF A WILL 



95 



could he liberate his estate from the obligation of fulfilling it, nor 
could he prevent it from passing to his heirs along with his estate. 
It was just as real as any other debt incumbent on his property, 
and must be paid out of the estate, by the heirs, if the estate be 
sufficient. 

In regard to the pilgrimage that Titius had vowed to make to 
Auriesville and required in his will that Cajus, his heir, make it 
for him, and in his name, it seems to us that Cajus is bound in 
conscience to make it, just as he is bound in conscience to make 
the gift of the gold chalice, but not precisely for the same reason. 
Theologians are agreed, indeed, that personal vows, and such was 
Titius' vow to malce a pilgrimage to Auriesville, do not attach 
the property or estate of the person making them, but only affect 
his person. They leave the inheritance intact and do not descend 
with it to the heirs. On this point there is no disagreement. 
Nevertheless, in the case before us, Titius constituted Cajus his 
universal heir on condition or with the understanding that Cajus 
would fulfill his vow in as far as it was personal also ; that is to say, 
that Cajus would make the pilgrimage for Titius. This was suffi- 
cient to bind Cajus' conscience, because Cajus was a voluntary heir, 
and was not obliged to accept the inheritance if he were not so 
disposed. In accepting the inheritance of his own free will and 
volition, he accepted implicitly the conditions on which it descended 
to him. While in a general or broad sense, it may be true that 
one person may not bind another person by a vow that is personal, 
nevertheless it is certain that a testator who bequeaths his property, 
to which he holds title in fee simple, to another, may add a proviso 
and burden the heir with the obligation of doing something, in such 
manner that if the heir refuse to fulfill the obligation by doing 
the thing required, he shall not receive the inheritance. Since, 



96 THE^ CASUIST— VOL. IV 

therefore, Cajus, of his own free will, elected to accept the inheri- 
tance left him by Titius, and since Titius constituted him his heir 
to fulfill also the personal part of his vow, i. e., the pilgrimage, we 
do not see how Cajus can be excused, once he accepts the inheri- 
tance, from making the pilgrimage to Auriesville. 



DOES THE EFFECT OF EXTREME UNCTION REVIVE f 



97 



XXII. DOES THE EFFECT OF EXTREME UNCTION 
REVIVE? 

If Extreme Unction fails to produce its effect at the moment of 
reception, owing to the lack of the proper dispositions in the 
recipient, does it revive later on, when the sick person supplies 
the necessary dispositions? The case is this: Titius was injured 
and rendered unconscious by an explosion in a trench where he 
was working. While unconscious he was annointed. When he 
recovered consciousness, he confessed that he was in mortal sin at 
the time of the accident, but was hit so suddenly that he had no time 
to think of anything and had not made an act of contrition. If he 
makes an act of contrition now, will he receive the grace of Extreme 
Unction, or must he be annointed again? 



Answer. Catholic theology teaches that the Sacraments, when 
validly administered, give grace to the recipient, unless the recipient 
places an obstacle in the way of grace. Non ponenti ohicem sacra- 
menta dant gratiam. The obex or obstacle which may impede the 
conferring of grace, is the lack of disposition in the recipient. It 
is the sacramental rite that is the cause of the grace. And the 
sacramental rite, when valid, will produce grace in the soul, unless 
the soul's lack of disposition prevents it. The soul's disposition 
is a conditio sine qua non. When the recipient of a Sacrament is 
not rightly disposed to receive it, he is said to place an obstacle, an 
obex, in the way of the Sacrament. The lack of disposition can 
never prevent the Sacrament from impressing its indelible character 
on the soul. The lack of disposition does, however, prevent the 



98 THE CASUIST— VOL. IV 

Sacraments from conferring grace. When it is said that the Sacra- 
ments revive, sacramenta reviviscere, it is meant that the Sacra- 
ments, later on, when the necessary dispositions are present, confer 
the same grace, which they would have conferred at the moment of 
their reception, had the recipient been rightly disposed. To remove 
the obstacle to a Sacrament is nothing else than to arouse the 
necessary dispositions, the absence of which prevented the Sacra- 
ment, when it was conferred, from producing its grace in the soul. 
It is evident that the necessary dispositions for the licit reception of 
a Sacrament may be lacking either through the fault of the re- 
cipient, or without his fault. For instance, a penitent may not have 
attrition for his sins at the moment when the priest absolves him, 
and this may happen either known or unknown to himself. In 
either case the Sacrament does not remit his sins, owing to the 
obstacle, i. e., lack of attrition, which he himself, either knowingly 
or unknowingly, places in its way. 

There is no intrinsic difficulty, arising from the nature of the 
Sacraments, why they should not revive, once the obstacle in their 
way is removed. Every Sacrament, validly conferred, gives grace, 
or at least gives the right to grace, for every Sacrament, validly 
conferred, produces its own peculiar effect, unless it is prevented 
from doing so by the recipient's lack of disposition. 

The difficulty about the reviviscence of the Sacraments arises 
from the difficulty of knowing positively whether Christ instituted 
the Sacraments so that they would revive. And concerning this 
question there is a great variety of opinion among the theologians. 
Some theologians maintain that only Baptism, if received with 
an obex, revives when the obstacle is removed. Other writers 
maintain that all the Sacraments revive. And finally, others hold 
that some of the Sacraments revive, while others do not. It is 



DOES THE EFFECT OF EXTREME UNCTION REVIVE f 99 

theologically certain that Baptism does revive, when the obstacle 
is removed. If this were not so, then many persons who receive 
Baptism without the proper dispositions, would be deprived, through 
the course of their lives, of the graces necessary to salvation. 

It is very probable that the Sacraments of Confirmation and 
Holy Orders also revive. For, like Baptism, they also imprint a 
character on the soul, and it is forbidden to repeat them, once they 
have been validly conferred. If they did not revive, remoto obice, 
many persons would have to go through life lacking the special 
graces altogether necessary for their state. 

As regards the Holy Eucharist and Penance, there cannot be 
urged the same reasons as for the other Sacraments, and therefore 
it is very doubtful whether, if received with an obstacle, they 
revive when the obstacle is removed. As they may be received or 
repeated every day, it is more than probable that they do not 
revive. However, it is not certain. The Sacrament of Marriage 
probably revives, because it may not be repeated or renewed dur- 
ing the lifetime of either party to it. There remains now only 
Extreme Unction. It is only probable that Extreme Unction 
revives once the obex to its effect is removed. The reason why 
theologians think that it may revive is this : Extreme Unction pro- 
duces very special effects; it confers very special graces, very 
necessary to the sick person; it may not be repeated during the 
same sickness. Now if it did not revive when the obex is removed 
and the necessary dispositions are present, the sick person, who 
through his own fault or without any fault of his own, had received 
Extreme Unction without the right dispositions, would be deprived 
all through his sickness of the graces of Extreme Unction, nor 
would there be any way of supplying them. As it is difficult to 
defend such a position, theologians are inclined to think that 



100 THE CASUIST— VOL. IV 

Extreme Unction, if received by the indisposed, revives or gives 
grace later on whenever the sick person becomes rightly disposed. 
This, however, is not certain, but only probable. 

Now it may be asked, if the Sacraments do not actually confer 
grace, owing to the lack of disposition on the part of the recipient, 
what must the recipient do to induce the right dispositions? Must 
he go to Confession and receive Absolution, or must he make an 
act of perfect contrition or will attrition suffice? To answer this 
question, it is necessary to distinguish between the Sacraments of 
the living and the Sacraments of the dead. If a person received 
the Sacraments of the living without being rightly disposed, that 
is, without being in the state of grace, then later on the state of 
grace can only be acquired by perfect contrition or by attrition 
and sacramental absolution. As soon as the state of grace is 
thus acquired, the obstacle is removed, which was the lack of 
grace, and the Sacrament produces its effect. This is true of all 
the Sacraments of the living, except Extreme Unction. In this 
matter. Extreme Unction is classed with the Sacraments of the 
dead. 

In the case of the Sacraments of the dead, all that is required 
to remove the ohex, and to induce the right disposition so that the 
Sacrament may produce its grace in the soul, is an act of attrition 
or imperfect contrition, unless a sacrilege was committed in the 
reception of the Sacrament, or a mortal sin after its reception; 
in this latter case, perfect contrition is necessary to induce the 
state of grace and thus remove the obex, or at least attrition with 
sacramental absolution. That is to say, sacramental confession 
and absolution are necessary, if possible, in the latter case, but 
perfect contrition, which includes a votum sacramenti, will suffice, 
where it is impossible to go to Confession. 



DOES THE EFFECT OF EXTREME UNCTION REVIVE f loi 

The case. When Titius received Extreme Unction he was in 
the state o£ mortal sin. That state was the obex to the Sacrament. 
It had to be removed before the Extreme Unction could produce its 
own peculiar graces in his soul. As Titius' reception of Extreme 
Unction was not sacrilegious and as he committed no mortal sin 
after its reception, then as soon as Titius makes an act of attrition, 
the Extreme Unction which he received while unconscious will 
produce its grace in his soul, even to the remission of his mortal 
sins committed before the reception of Extreme Unction, in case 
Titius cannot go to Confession to be absolved, and in case he does 
not make an act of perfect contrition. For this is peculiar to the 
Sacrament of Extreme Unction, that it has been instituted to 
give per se the primam gratiam to those who make an act of 
attrition, if in mortal sin, and who cannot make a Sacramental 
Confession. If Titius had only venial sins on his soul when an- 
nointed and had no attrition for them, then they would not be 
remitted by the Extreme Unction until such time as Titius elicited 
an act of imperfect contrition or attrition. Under no circum- 
stances is it lawful to re-annoint Titius at this time. 



SERVILE WORK ON SUNDAY 



XXIII. SERVILE WORK ON SUNDAY 

James is a cigar maker and has a little business of his own. He 
is accustomed, on Sundays, after going to Mass, to spend five or 
six hours in his shop, making cigars. He does not give any 
scandal because no one knows it. He does it, he says^, in order 
to escape from idleness, and besides, it seems to him much better 
to be engaged in some decent work at home, than to spend the 
time loafing around, or in saloons. Are his reasons sufficient to 
justify him? 

Answer. The following are the chief kinds of work that are 
permitted on Sundays: 

1. Works demanded by our own personal need or the need 
of our neighbor; 

2. Works in the direct service of religion; 

3. Works of charity, care and nursing of the sick, burying the 
dead; 

4. Works permitted by custom, as cooking, sweeping the house, 
etc.; 

5. Works permitted by dispensation obtained from legitimate 
authority. 

Now it is very evident that the work done by this cigar maker 
does not come under any of the heads of this category. There- 
fore it is work that may not lawfully be done on Sunday, except 
for other reasons than those advanced by James. 

James says that he works on Sundays in order to shun idleness. 
But this is not a sufficient excuse, because there are other and 
lawful ways of shunning idleness on Sundays, such as praying. 



THE CASUIST-VOL. IV. IQ3 

meditating, attending vespers and benediction of the Blessed Sac- 
rament, reading good literature, etc. There are authorities that 
permit servile work on Sundays simply as a means of shunning 
idleness, if there were good reason to fear that idleness, in this 
instance, would lead one into sin. But St. Alfonsus thinks that 
even in such a case, servile work would be permitted only if it 
were the only means of conquering the temptation to sin. Cer- 
tainly this cannot be said of this cigar maker. In fact, it would 
be very rare that it could be said of anybody. 

The other excuse that James gives for working on Sunday 
is equally untenable. He says it is better to be decently employed 
at home on Sundays, than to be idling about or drinking and 
gambling in the saloons. It certainly is better, or at least less 
sinful. But it is not necessary to do either. It is lawful to choose 
the lesser evil, when that is the only way of escaping the greater 
evil. But this is not true of James. He does not have to make 
cigars on Sunday in order to keep out of the saloons. If this 
were the only means for James to keep out of the saloons, he 
would be allowed to use it. And in a particular case, it might be. 
But it is not true of James. He has other and lawful means at 
hand to escape idleness and the saloons. 

Speaking in the abstract, therefore, we would say that this 
cigar maker, by engaging in servile labor on Sundays, without a 
valid reason and for a considerable time, that is for longer than 
two hours, commits a mortal sin, because he violates the com- 
mandment to sanctify the Lord's day, in a serious manner and 
without a justifying reason or excuse. And even though he works 
only an hour now and again during the day, if all the time he 
works, when added together, amounts to considerably more than 
|wo hours, then he commits a grievous sin, because the work thus 



104 SERVILE WORK ON SUNDAY 

done on Sundays, even though interruptedly, coalesces, as the 
theologians say. 

We say, theoretically speaking, James commits a grievous sin. 
Practically, we think that for the want of sufficient knowledge, 
James did not commit a grievous sin. He acted in good faith, 
believing honestly that he had ample justification for working 
as he did on Sundays. But once he is instructed regarding his 
case, if he nevertheless continues to engage in this labor on Sun- 
days, we do not see how he can be excused from mortal sin. 
Still, even then, James' own peculiar mental character must be 
taken into account, before a just decision can be reached. 



THE RITE OF THE NUPTIAL BLESSING 105 



XXIV. THE RITE OF THE NUPTIAL BLESSING 

What are the special rites, prescribed by the Roman Missal, to 
be observed in giving the nuptial blessing to the bridal pair during 
the Nuptial Mass? 



Answer, i. During the Nuptial Mass, the bridal pair should be 
seated some place near the Altar, in loco honestiori propius ad 
Altare, and while the priest is saying the Pater noster in the Mass, 
they should leave their place and approach the Altar, where they 
remain kneeling. 

2. When the Pater Noster is finished, the clerk answers Sed libet a 
nos a malo, and the priest, having said Amen, genuflects and retires 
to the Epistle side of the Altar, where he turns around toward the 
bridal pair, who are kneeling before him, and with hands joined, 
he reads from the Missal, which the clerk has taken from the Altar 
and holds before him, the two prayers: Oremus, Propitiare, Dme., 
etc., and Oremus, Dens qui potestate virtutis, etc. When he pro- 
nounces the words Jesum Christum in concluding these prayers, he 
bows his head profoundly toward the Sacred Host, reposing on 
the Altar. As soon as the celebrant has finished these two prayers, 
the bridal pair return to their places, and the celebrant, turning 
toward the middle of the Altar and genuflecting, purifies the paten 
and continues the Mass. 

3. After the priest has consumed the precious Blood, he gives 
Holy Communion to the bridal pair, observing the customary rite. 
By a decree of the Congregation of Rites, March 21, 1874, the 
nuptial blessing may be given in the Mass, even though the bridal 



io6 THE CASUIST— VOL. IV 

couple do not receive Holy Communion during the Mass. The 
Sacred Congregation, however, admonishes the pastors to exhort 
the faithful who are about to be married, that they approach Holy 
Communion during the Mass in which they receive the nuptial 
blessing. 

4. As soon as the Post Communions have been said, the bridal 
pair again approach the Altar and remain kneeling before it. The 
celebrant says Benedicamus Dmo. or Ite Missa est, according to 
the Mass of the day, and then turns or remains turned toward the 
bridal party, and reads the prayer from the Missal, which the clerk 
has again taken from the Altar and holds before him: Deus Abra- 
ham, Deus Isaac, etc., with his hands joined before him and bowing 
his head profoundly at the name Jesu Christo. 

After this, says the Missal, let the priest admonish the pair "ser- 
mone gravi, ut sibi invicem servent fidem: orationis tempore, et 
praesertim je junior em ac solemnitatum, casti maneant: et vir 
uxor em, atque uxor virum diligat: et in timore Dei permaneant." 
Then the priest takes the aspersorium and sprinkles the bridal pair 
with holy water "in medio, a dextris ipsorum et a sinistris, nihil 
interim dicens." 

5. After this, the bridal couple return to their seats, and the 
priest, turning to the Altar, says the Placeat and gives the blessing 
as usual, and finishes the Mass. 



XXV. A CASE OF CONSCIENCE REGARDING CON- 
FESSIO EXTERNA FIDEI 

A young man, brought up as a Protestant, has for some time 
been convinced that the CathoHc is the only true Church. He re- 
solves accordingly to enter it, but there are serious difficulties in his 
way. He lives with his parents, who are strict Protestants, and 
the least hint of his intention would at once arouse their anger ; it 
would be impossible for him to continue to live peaceably in his 
parents' house ; he would have to hear all manner of bitter remarks 
and finally would be compelled to quit his home. He will not be in 
a position to support himself for about three years ; after that time 
he will be free from his parents' authority and able to take the im- 
portant step openly. Being perplexed as to how to act, he suc- 
ceeds in having a private conversation with the local Catholic 
priest, to whom he reveals his difficulties. The priest, as is his 
duty, has recourse to the Bishop. How will the latter decide the 
case? 

The question is this: Is the young man bound to confess his 
faith in spite of all obstacles, and publicly to be received into the 
Catholic Church, or may the Bishop allow him to be received se- 
cretly, and to keep the fact of his conversion concealed until he 
can leave his father's house? 

Against an affirmative answer may be quoted our Lord's words : 
" Qui confitebitur me coram hominihiis, confitebor et ego eiim 
coram Patre meo " (Matth. x, 32) ; and also the threat: " Qui me 
erubuerit et meos sermones, hiinc Filiiis hominis enibescet, cum' 

107 



io8 THE CASUIST— VOL. IV. 

venerit in majestate sua " (Luke ix, 26). To obtain a just apprecia- 
tion of these severe words, we must notice the contrasting clause, 
added by our Lord Himself. To the words, " Qui confitebitur me," 
etc., the contrasting clause is not: " Qui me confessus non fuerit," 
etc., as it is with reference to faith : " Qui non crediderit, condemna- 
hitur," but it is : " Qui negavcrit me,'' " Qui me erubuerit." Christ 
shows us plainly in this way that it is not permissible positively to 
deny His name and doctrine, and that false shame is no sufftcient 
reason for a man's concealing his faith. 

After setting aside this objection, we may adduce the following 
principle in support of an affirmative answer : Praecepta affirmativa 
obligant semper, sed non pro semper, or Praecepta affirmativa non 
obligant ad semper, sed certis duntaxat temporibus agendum. The 
Confessio exterma fidei is precisely a praeceptum affirmativnni. It 
is, moreover, a generally accepted doctrine that weighty reasons, 
such as the certainty of incurring serious injury, relieve us from 
the duty of obeying laws that are not absolutely necessary to our 
salvation. The Confessio externa fidei is a law of this kind. It is 
permissible to conceal our religious convictions, where neither the 
honor of God, nor our own salvation, nor our neighbor's welfare, 
require us to reveal them, provided that we have good reasons for 
keeping them secret. 

In the case under consideration a Confessio externa does not 
aft'ect the honor of God nor the welfare of a neighbor. The young 
man's own salvation might be imperiled in his present circum- 
stances, as, should it be made his duty to proclaim his faith, he 
might put off his conversion, and possibly never be converted. 

My conclusion is, therefore, that the Bishop can give the 
young man permission to be received into the Catholic Church 
secretly, and can at the same time dispense him from observing 



CASE REGARDING CONFESSIO EXTERNA FIDEI 109 

the commandments of the Church, although he ought to hear 
Mass occasionally, when he is able to do so. He can easily re- 
ceive the Sacraments secretly, in some other town for instance. 

Another question arises in connection with this subject: What 
is the young man to do if his parents wish him to accompany 
them to a Protestant church? How is he to behave? If he 
cannot avoid yielding to their wishes or commands, he may go 
with them, but he must not take part in the singing or prayers of 
the service. 

In support of the opinions expressed above, we may quote the 
following passage from St. Thomas Aquinas : '' Si turbatio 
infidelium oriatur ex confessione fidei manifesta, absque aliqna 
utilitate fidei vel fidelium, non est laiidabile in tali casu fidem 
publice confiteri, unde Dominns dicit Matth. vii : ' Nolite sanctum 
dare canibus, neque margaritas vestras spargere ante porcos, ne, 
conversi disrumpant vos.' Sed si utilitas fidei aliqua speretur aut 
necessitas adsit, contempta perturbatione infidelium, debet homo 
publice fidem confiteri; unde Matth. xv dicitur, quod, cum dis- 
cipidi dixissent Domino, quod Pharisaei audita ejus verbo scan- 
dalisati sunt, Dominus respondit: sinite illos, scilicet tiirbari, cacci 
sunt et duces caecorum" (II. — 11. qu. 3, a. 2, ad 3). — Professor 
Josef Aertnys, C.SS.R. 



XXVI. IS IT A GRIEVOUS SIN FOR INNKEEPERS 
TO SUPPLY SPIRITUOUS LIQUORS TO CUSTOM- 
ERS WHO ARE DRINKING TO EXCESS OR WHO 
ARE ALREADY DRUNK? 

An innkeeper is in the habit of serving every customer who 
asks for drink, even if he is plainly drinking too much or is already 
intoxicated. The man may be wasting on drink money that be- 
longs to his wife and children, but the innkeeper pays no attention. 
Is not such behavior a grievous sin ? And can an innkeeper receive 
absolution if he habitually acts thus and will not promise to alter? 

A question of this kind touches one of the difficulties in Moral 
Theology, The point is whether and under what conditions it is 
permissible to connive at another's sin. 

The doctrine of cooperation forms probably the most difficult 
part of practical moral theology. It is easy enough to say, as do 
the writers of most books on the subject, that formal cooperation 
is never permissible, but that material cooperation is allowed for 
comparatively important reasons. What is meant by formal and 
material cooperation? It is often difficult to distinguish them, 
and still more difficult to decide whether the existing reasons are 
sufficient to justify material cooperation. Lehmkuhl says (I. n. 
648): " Neqiie omnes difficultates in Jiac parte possunt solvi. 
Theologus principia tantum et regiilas quasdam dare potest, quas 
in singulis casibus applicare practicae prudentiae agentis vel con- 
siilentis committere debet." 

There can be no doubt that formal cooperation occurs whenever 
no 



SPIRITUOUS LIQUORS SUPPLIED TO DRUNKARDS 1 1 1 

an innkeeper invites or urges those already half or wholly intoxi- 
cated to go on drinking. Lehmkuhl says in this connection: 
" Excitare ad largiorem potum certe intrinsecus malum est " 
(Theol. mor., I. n, 403). Berardi writes {Praxis confessariorum, 
pag. 169, n. 786) : " Incitare ad ebrietatem praecise est intrinsece 
malum." 

Let us imagine a case in which the innkeeper was aware that 
his customer intended to commit some great crime, possibly mur- 
der, and was drinking spirits in order to nerve himself for his 
task; — would it then not be permissible for the innkeeper to 
encourage him to go on drinking, until he was incapable of any 
action, and so was prevented from committing the intended crime ? 
No, it would not be permissible, if such encouragement is a formal 
cooperation in the sin of intemperance, for formal cooperation is 
never allowed; it is intrinsece evil, so that we must apply to 
it the Apostle's words (Rom. iii, 8): " Non faciamus mala, ut 
veniant bona" St. Augustine lays down this principle very clearly 
in his work contra mendacium (c. 20, n. 40) : " Etiani ad senipi- 
ternam saint em nulliis ducendiis est opitidante mendacio." The 
end can never justify bad means, means recognized as bad. 

To prove how difficult it often is to distinguish formal from ma- 
terial cooperation, we may refer to the debated question, whether 
it is right to encourage some one to commit a sin, in order to deter 
him from committing some more grievous oflfense, which he is on 
the point of doing. This question bears a close resemblance to the 
one under discussion. St. Alphonsus (Theol. mor., lib. 3, tract. 
3, n. 57) considers the theory that it is right " probabilior," giving 
as his reason that in such a case the lesser sin is no longer an evil 
but a good action, being less bad (suadens non quaerit malum, 
sed bonum, scilicet electionem minoris mali). 



112 ~ THE CASUIST— VOL. IV. 

Following this line of argument, some writers maintain that it 
is right to advise a man to drink too much in order to preserve him 
from immorality. Schwane, however, in his Moraltheologie 
(Part I, § 47, p. 147), says: "A lesser sin may be called a lesser 
evil, but not a good thing, and not a moral advantage, which is the 
point to be proved. It is always forbidden to cooperate in any 
sin by counsel. Other theologians, such as Laymann, Gury, Col- 
let, etc., state the matter more precisely, and say that it is permis- 
sible to advise a man to commit a lesser sin in order to prevent 
his sinning more grievously, if the lesser sin forms a part of the 
greater. For instance, it is permissible to say to one about to 
commit a murder : ' Stop, do not kill him, only wound him.' By 
saying this, we should not give any formal cooperation to the sin, 
but we should only be preventing its complete committal." 

To return, therefore, to our original question: An innkeeper 
might set some strong wine before that particular customer, fore- 
seeing that he would get drunk, yet not urging him to drink it. 
Setting wine before him is only a material cooperation in the sin 
of ebrietas and is permissible for relatively important reasons. 
The wish to prevent the intended crime is certainly a sufficient 
reason for allowing the sin of drunkenness. Lehmkuhl says 
(Theol. mor., I. n. 744): " Aliquem ad ehrietatem inducere, eti- 
am quae illi form.alis est, licebit probabiliter ex eo fine eoque solo, 
ut idem ipse a majore peccato, ad quod determinatus est, impedi- 
otur, V. g. ab homicidio." 

Let us now ask: May the innkeeper supply spirituous liquors 
to his customers at their request, when he sees that they are drink- 
ing to excess? 

In this case, too, the cooperation in the sin Is only material, and 
is therefore permissible for relatively important reasons. We 



SPIRITUOUS LIQUORS SUPPLIED TO DRUNKARDS 113 

ought therefore to examine the reasons, and see whether they are 
sufficient or not. If the innkeeper fears to refuse to serve his 
customers, lest they should use oaths and foul language, he may 
certainly choose the lesser of two evils, and tolerate their drunken- 
ness in order to prevent blasphemy. Again, if he fears to refuse 
to serve them, because of great loss to himself, knowing that his 
profits will be greatly diminished, he is not bound to refuse to 
supply what is ordered. Berardi says (/. c.) : sufficit causa medi- 
ocriter gravis; qualis esset, si alias notabiliter laederentur {can- 
pones) ex diminnfione emptorum." St. Alphonsus writes (lib. 3, 
tract. 3, n. 70) : " Satis excusantur oh metum cujuscunique gravis 
damni." Lehmkuhl says (/. c. n, 673) : "" Causa mediocriter gravis 
et requiri videtur et sufficere, ut excusatio a peccato adsit." 

The innkeeper is bound not ex justitia, but ex caritate, to prevent 
his customers from committing the sin of intemperance. If 
charity be exclusively taken into consideration, the desire to avert 
some serious damage is enough to justify him in cooperating in 
another's sin by good or indifferent actions, — in this case by supply- 
ing the drink that is ordered. It cannot be laid down as a general 
rule that innkeepers ought to refuse to serve such customers, since 
a rule of this kind would certainly inflict great loss upon them in 
their business. In special cases, however, it is undoubtedly an inn- 
keeper's duty to refuse to supply any more drink to a man ebrietati 
proximus, when such a refusal would not cause him any serious 
loss. Berardi says (/. c.):" Solum motiviim lucri {quia scilicet 
talis vel talis ebriosus vini petiti pretium solvit) non sufficit." 

The expression "belonging to their wives and children" is 
probably not to be taken in the literal sense that the drunkard 
pays his reckoning with money that is not his own. If this were 
the meaning, the question would require special discussion. It 



114 TEE CASUIST— VOL. IV. 

most likely means that he wastes on drink what should be the 
family income, and reduces himself and his relations to poverty 
and want. In this case the innkeeper is not bound by justice, but 
only by charity, to avert ruin and want from the family. Although 
he is bound only by charity, it is clear that in such a case it is his 
duty to put up with considerable incommodum, and that he ought 
to have very strong reasons to justify him in supplying such 
drunkards with spirituous liquors when they order them in excess. 
We have, finally, to notice the case where there are other inns 
in the neighborhood in which the innkeepers will not hesitate to 
supply a customer, so that a refusal on the part of one to serve 
him will not keep him sober. On this subject we may quote 
Schwane, who says in his Speciale Moraltheologie (Part i, § 48, 
n. 3) : " Occasionally a decisive importance is ascribed to the cir- 
cumstance that the action in question is the conditio sine qua non 
of another's sin, in such a way that material cooperation is allowed 
when the sin will certainly be committed quite apart from it, but 
it is not allowed when the sin depends upon that action, and if 
there were no cooperation the sin would not be committed at all." 
This circumstance has certainly a bearing upon the imputation of 
cooperation, but not in such a degree as to render the cooperation 
permissible as soon as it ceases to be the conditio sine qua non. 
An innkeeper may foresee that a customer who is evidently drink- 
ing to excess will go elsewhere and obtain what he wants if he is 
not served in the house where he now is. This reason does not 
justify the innkeeper in cooperation, i. e., in supplying spirits in 
excessive quantities — all that can be said is, that in cases where very 
probably a refusal on his part to sell would prevent the sin of 
drunkenness altogether, much stronger reasons are required to 
justify the sale than in other cases. 



SPIRITUOUS LIQUORS SUPPLIED TO DRUNKARDS 1 1 5 

Enough has been said to enable us to see how an innkeeper 
ought to be dealt with in the confessional with regard to this 
point The first thing to ascertain is whether he is in the habit 
of sinning grievously. If so, he must be admonished to be truly 
contrite for his sins, and to resolve firmly to avoid them in future. 
If he cannot be brought to these dispositions, absolution must of 
course be refused. The confessor must, however, be certain, as 
the result of his examination, that the penitent's action is really 
sinful. 

We can only repeat what was stated above in words quoted from 
Lehmkuhl : Only general principles can be established : their ap- 
plication must be left to practical common-sense. An innkeeper 
with a prosperous business, who is respected in the neighborhood 
where he lives, can keep good order in a case of this kind far 
more easily than a poor rival, who is dependent upon the money 
that he takes each day. The former can say to his customer: 
" You have had enough for today, friend," without being obliged 
to fear lest he should give offense. A great deal depends upon 
the circumstances in a matter of this sort. 

Other equally practical questions might be asked regarding inn- 
keepers, e. g., whether they may serve their customers with flesh 
meat on abstinence days, or supply certain newspapers, but we 
have restricted ourselves to the question that was actually asked. — 
Professor Josef Weiss. 



XXVII. IS A MAN BOUND TO MAKE COMPEN- 
SATION FOR NOT HAVING PREVENTED SOME 
INJURY TO HIS NEIGHBOR? 

Florian has a deep sandpit dug on his own land. He knows that 
a certain Andrew often passes that way at night, but does not 
draw his attention to the sandpit, or warn him to be careful where 
he walks. The result is that when Andrew again goes in that di- 
rection one night, unaware of the danger, he falls into the pit and 
breaks his leg, so that he cannot work for two or three months. 
Ought Florian to give him any compensation or not? 

Answer. — In considering the question of personal injury, com- 
pensation has to be given only when the action causing the injury 
(i) is unjust (contra jus strictum alterius), (2) when it is also 
the actual cause of the injury {causa damni efficax), and (3) when 
it is also blameworthy from a theological or legal point of view. 

Unless all these three conditions are fulfilled, no compensation 
is obligatory. We may here disregard the legal offense (quam 
solummodo leges civiles imputant et cujus judicis sententia rei 
declaramiir) . 

If a person acts consistently within his own rights, and has no 
intention of injuring any one, although he may foresee that the 
other will suffer, he is not inflicting any real wrong upon him, for 
the principle holds good : Qui jure suo utitur, neminem laedit. 
He need therefore {ex justitia) give him no compensation, any 
more than a man need compensate his neighbor for diverting a 
stream of water that is injurious to his own land, though beneficial 

116 



COMPENSATION FOR INJURY 



117 



to his neighbor's. The duty of paying compensation is binding 
only when there has been a violation of obligations of justice and 
not merely violations of the law of charity, so that it is possible 
for a man to sin grievously without being bound to make com- 
pensation; and this distinction should always be kept in view in 
order to avoid rigorism. 

The case would be different if there were no good reason for the 
action, or if a man had no strict right to perform it. For in- 
stance, a man would sin against justice if he were to divert a 
stream that did him no harm and by altering its course harmed 
another person. Many circumstances have often to be taken into 
account when questions of this kind present themselves. 

Supposing Florian had failed to warn Andrew through motives 
of hatred? The same answer is still applicable. He either had a 
right to dig the pit or he had none. In the latter case he wronged 
his neighbor and is bound to give him compensation, but not in 
the former. His bad intention does not affect this question, since 
it cannot make unjustifiable what was in itself justifiable. How- 
ever, though Florian has not sinned against justice (and this is the 
point on which the question turns), because he has a right to dig 
a pit on his own land, he has sinned grievously against charity to 
his neighbor by failing to warn Andrew to take care where he 
walked. — Dr. Marcellin Jos. Schlager. 



XXVIII. WHAT ARE THE OBLIGATIONS OF A 
PERSON WHO HAS DISPOSED OF AN ARTICLE 
THAT HE FOUND WITHOUT MAKING ANY AT- 
TEMPT TO DISCOVER THE OWNER? 

On the occasion of a numerous pilgrimage Gregory finds a 
bank-note near the church. The note has been trodden in the 
mud and is in a bad state, but not actually destroyed. He cleans it 
carefully and sees that it is a bill of ten dollars. Believing that it 
would be quite impossible to discover the owner, as an enormous 
crowd has assembled from all parts, he gives it to a ragged beggar 
near the church, thinking that in this way he is doing a good 
work, both on his own behalf and on that of the unknown owner. 
Upon returning to his home he hears that his neighbor's wife has 
lost a ten-dollar bill, but she does not know whether she dropped 
it on her way to church or whether some one in the crowd picked 
her pocket. Gregory says nothing about having found a bill, but 
hurries back to the church in hopes of meeting the beggar to whom 
he has given it, but though he does his best and makes many in- 
quiries, he fails to discover him. Not being sure whether he is 
bound to compensate his neighbor's wife, he asks advice of his 
confessor. Quid ad rem? 

I. If any one chances to find a thing that another person has 
lost, he should be guided by the following principles : 

(a) The finder is not legally bound to pick up and carry away 
the thing found ; without breaking any law he may leave it alone, 

ii8 



DISPOSITION OF FOUND ARTICLES 119 

even at the risk of its being destroyed. Charity, however, may 
constrain him to take it away with him if he thinks that otherwise 
the owner will never recover possession of it. 

(b) If the finder carries away what he has found, he incurs a 
legal obligation to take care of it and to preserve it. Moralists are 
unanimous in thinking that he makes a kind of contract — negotio- 
rum gestio — with the owner, and is bound by the obligations that 
such a contract would naturally lay upon him. 

(c) One of these obligations is that he must not keep the fact of 
his discovery secret, but must employ all suitable means of finding 
the owner, so that the latter may resume possession of his property. 
These means must be proportioned to the value of the thing found, 
and local customs and regulations must be observed. (Cf. Carriere, 
de ohjecto justitiae, pars I. cap. 4, art. i, § 5). 

II. Bearing these principles in mind, we may ask what opinion 
we should form of Gregory's action, and whether he has incurred 
any obligation to compensate his neighbor's wife for her loss. 

(a) On finding the money he considered whether he might find 
the owner, but decided that this was morally impossible, owing to 
the great crowd of pilgrims. He had no wish to keep the money 
for himself, so gave it to a poor man, thinking that he was thus 
doing a good action. 

Under the existing circumstances, might he not reasonably have 
hoped to succeed in restoring what he had found to its owner? 
Pruner's Moraltheologie (Part 3, div. 3, 2, § 4, II.) states that the 
hope of finding the owner is least in the case of articles bearing no 
distinctive marks, such as coins without a purse, paper money 
without a pocketbook, etc., especially if the circumstances of time 
and place afford no trace of the person who has lost them. All the 
factors mentioned by Pruner seem to be present in the case under 



120 THE CASUIST— VOL. IV. 

consideration. The note found by Gregory bore no mark showing 
to whom it belonged ; thousands of people from various localities 
had passed over the spot where it lay, and if he had not happened 
to notice it and pick it up, it might have been trampled to pieces 
and have lost all value ; possibly it had been for some considerable 
time lying in the dirt. All these facts might certainly lead Gregory 
to believe that it was useless to try to discover the owner, 

(b) One point still remains to be discussed before a final de- 
cision can be given. It concerns the conscientious application of all 
the means of finding the owner which the value of the note 
furnished, and which a man's intelligence, the law, and local cus- 
toms might suggest. 

In spite of the fact that the circumstances mentioned above justi- 
fied Gregory in thinking that it was useless to try to discover the 
owner, it was nevertheless his duty, considering the value of the 
note, to do what he could to find out to whom the money belonged 
before disposing of it by gift. This is an obligation of justice, laid 
upon the finder by the quasi-contract into which he enters by the 
appropriation of the thing found. Gregory could have complied 
with this obligation without any great difficulty; he might have 
put an advertisement in the newspaper, or have given notice to the 
police or the clergy at the place of pilgrimage. If he had done 
this, in all probability the woman would have recovered her money. 

Is Gregory bound to make good her loss because he neglected 
this duty? His actions show that his failure to take any steps to 
find the owner of the note was not due to any malice, i. e., sine dolo 
et culpa lata peccaminosa; and for this reason he is free from any 
obligation to repay the money. There was no dolus in what he 
did, for in neglecting to make inquiries he had no wish to injure 
the owner by wilfully defrauding him. He had not therefore com- 



DISPOSITION OF FOUND ARTICLES 1 2 1 

mitted any citlpa lata of a kind that would require him to make 
compensation. There was no punishable neglect in his omission 
to use due care in finding the owner; assuming that under the 
existing circumstances it would be impossible to discover to whom 
the note belonged, he did not even think of its being his duty to 
make inquiries. We have therefore here a casus oblivionis vel in- 
advertentiae, " In quo casu pro damno rei alienae illato — Lugo de 
Justitia Dispiit., 8, n. 100-113 — citra culpam theologicam, saltern 
gravem, restitutionis obligatio nulla adest in foro conscientiae ante 
judicis sent en tiam." 

Culpa lata in contracts consists in failing to use ordinary care, 
which any other reasonable person would take of a thing, or in 
deaHng with the affairs of others less carefully than with one's 
own. According to the divine law, a person is answerable for loss 
caused by culpa lata only if the action or the neglect indirectly 
causing the loss was rendered really sinfid by the fact that the 
person in question foresaw the consequences of what he was doing, 
and nevertheless failed to choose another course of action. If, 
however, the cidpa lata was a simple cidpa juridica, to which no 
blame is attached in foro interno, i. e., in one's conscience, there is 
no duty of indemnification to be considered. Cf . Pruner, Moralthe- 
ologie, Part 3, div. 3, 3, § 7, a and b; Gury de Justitia, no. 661, 
qu. I ; St. Liguori de Justitia, no. 554. 

From what has been said, it appears that, on the one hand, 
Gregory had good reasons for assuming that it would be impos- 
sible to- discover the owner of the money under existing circum- 
stances, but that, on the other hand, he neglected bona fide — citra 
culpam theologicam — the duty of advertising what he had found, 
and making inquiries about the owner, since it did not occur to him 
to do so. 



1 2 2 TEE CASUIST— VOL. IV. 

Consequently he is not bound to pay any compensation. Only 
post factum did he become aware that he ought not to have given 
the money away so promptly. He did his best to repair his mis- 
take by going at once to look for the beggar, intending to give him 
some smaller sum in return for the note if he could recover it. 
He did not succeed in his attempt, and he is not bound to do any- 
thing further. — Dr. Adam Wiehe. 



XXIX. REMEDIUM ILLICITUM 

Venit quaedam ad confessarium atque inter alia confitetiir, se 
permisisse aliquid inhonestimi, sc. copulam, juveni, ciii hoc reme- 
dium a medico ad sanandum morbum praescriptum fuerit. Quid 
dicendumf 

Apparet statim, tale remedium esse omnino illicitum nee posse a 
medico praescribi nee ab aliqiio adhiberi. Si igitiir medicus illi 
juveni, cui impossibile esset matrimonium inire hoc injunxisset in 
morbo, juvenis debet seqiii exemplum beati Casimiri Conf., de quo 
in Brev. {die 4 Martii) narratur: " Virginitatem sub extremo 
vitfie termino fortiter asseruit, dum gram pressus infirmitate mori 
potius, qtiam castitatis jacturam, ex medicorum consilio, subire 
constanter decrevit." 

Ceterum hoc consilium medici videtur post-habendum esse, cum 
medici nunc temporis generatim tale remedium posse esse neces- 
sarium non concedant. Medio quidem aevo talis opinio vigebat, uti 
scriptores referunt, sed dimanaverat in scholas medicorum ex libris 
antiquorum ethnicorum ef arabicorum medicorum; nunc iam sanior 
doctrina successit, uti satis apparet ex his, quae disputat cl. Stohr 
{Pastoral-Medicin, IV. p. 262 et sqq.), qui praeter alia dicit: "If 
I add that the very physicians, who were so httle concerned with 
Christian ethics that they believed themselves able to quench the 
fire of passion by means of the trivial drugs at their disposal, did 
not hesitate to recommend sexual intercourse as a remedy for 
various diseases, this fact alone is enough to reveal the true char- 
acter of the cynicism that dominated medieval medicine." 

123 



XXX. THE SEAL OF THE CONFESSIONAL MUST 
BE OBSERVED EVEN IN THE CONFESSIONAL 
ITSELF 

Uxor quaedam ejusque maritus apud eundem Confessarium pera- 
gunt confessionem paschalem. Mulier confitettir se adulterium 
commisisse et quideni instigante viro suo, nescio qua ratione ducto. 
Maritus statim post uxorem accedit, sed de hac re, de consilio 
nempe suo malitioso, prorsus nihil dicit. 

The confessor is in a state of the greatest perplexity. On the 
one hand he knows from the answer to his question about the 
last confession that the delictum cannot have been the subject of a 
former confession, but, on the other hand, he knows how strictly 
binding is the seal of the confessional upon the confessor, and that 
it is absolutely wrong for him to make any use of knowledge de- 
rived from one person's confession in dealing with another peni- 
tent, although he may be aware of some sin committed by the 
latter. In this difficulty the confessor — whom we may call Fortu- 
natus — suddenly remembers that he has read, in works on moral 
theology, that it is not to be regarded as a fractio sigilli if a con- 
fessor, hearing the confession of sponsi in such a case, supple- 
ments the deficiency by means of questions not likely to arouse 
suspicion. He asks his penitent therefore a few questions, such 
as, whether he has nothing more on his conscience, whether he has 
not cherished evil thoughts, whether he has not used improper lan- 
guage, whether he has been guilty of another's sin, whether he 
has advised any one to sin? Fortunatus dares not go further, 

124 



THE SEAL OF THE CONFESSIONAL 1 2 5 

for the penitent answers each question with an emphatic " No," 
and declares that he has nothing more to confess. It seems in- 
credible that the man can really have forgotten so serious an of- 
fense, and the priest finally comes to the conclusion that he is deal- 
ing with a thoroughly hardened sinner, and so, in order not to 
expose the Sacrament to frustration, he follows the advice given 
by St. Alphonsus, and says a de profundis over him, instead of 
giving him absolution, and dismisses him. Subsequently, however, 
very grave doubts arise in his mind, and he wonders whether he 
has acted rightly, and whether, by asking one or two more ques- 
tions, he could not have made it easier for his unhappy penitent to 
confess his grievous offense. Fortunatus thinks that more judi- 
cious treatment on his part might have restored the grace of God 
and peace of mind to the man, and have saved him from the terrible 
sacrilege of making a bad Communion. Should he not have fol- 
lowed the advice of other theologians and have given him absolu- 
tion at least conditionatim? 

The question resolves itself into two points: 

(i) Ought Fortunatus to have asked further questions of a 
more searching character ? 

(2) Did he act rightly in not giving absolution ? 

Answer. — (i) Fortunatus should be troubled not because he has 
asked too few questions, but rather because he has asked too many. 
He certainly went too far in asking the penitent whether he had been 
guilty of another's sin, and whether he had advised any one to sin. 
These two questions could be asked citm suspicioncm only in the 
case when a confessor, owing to the incompleteness of a confession 
made to him, takes all the commandments singly and questions 
the penitent with regard to each separately. In the form and 
order in which Fortunatus asked the questions, the last at least 



126 THE CASUIST— VOL. IV. 

is decidedly objectionable and is equivalent to an indirect laesio 
sigilli. 

The reference to the questions that may in a similar case be 
asked of sponsi is not to the point. The case is not similar. In 
that of sponsi the questions are such as do not imperil the sigillum, 
because they relate to sins quae apud sponsos contingere solent. 
The confessor may then ask plainly about sins de sexto, though he 
must of course do so discreetly. But in the case under discussion 
the sin is not one of those quae apud sponsos contingere solent, 
and it would never have occurred to Fortunatus to ask such a 
question unless he had previously heard the confession of the ac- 
complice. By asking it, he may very probably have aroused in his 
penitent, especially if the latter was wilfully silent regarding his 
sins (as Fortunatus believed), the suspicion that the priest was 
asking these questions because of something heard in the preceding 
confession. 

(2) In my opinion Fortunatus committed a still more serious 
mistake in not giving absolution. St. Alphonsus advised con- 
fessors to substitute some prayer for the formula of absolution, in 
the case of a sinner who had not the proper dispositions, and to 
whom it was impossible to explain why absolution was refused 
him. The Saint was referring to a case that might easily occur in 
confessions of sponsi, but his remarks apply only to instances in 
which the bad dispositions resulting from punishable silence are 
perfectly certain. Fortunatus cannot possess this certainty in the 
case under discussion, because, although the sin is in itself grievous, 
it is one committed by the tongue, and it may possibly have really 
been forgotten. We should remember how little attention is 
paid to sins of the tongue even by otherwise conscientious people. 
It is also conceivable that the penitent has some erroneous idea that 



TEE SEAL OF TEE CONFESSIONAL 127 

his evil suggestion was not particularly sinful, perhaps owing to 
impotentia relativa propter imbecillitatem ex parte viri. (Cf. 
Binder-Scheicher, Eherecht, p. 24, note i.) 

There may have been very little ground for his entertaining 
these doubts, or others like them ; but still any one of them ought 
to have been enough to prevent Fortunatus from having recourse 
to the manner of refusing absolution that some theologians recom- 
mend. I say this the more emphatically because, even where the 
confessor is perfectly certain, in the above-mentioned circum- 
stances, that there is indispositio on the part of the penitent, many 
approved authors are opposed to any refusal of absolution, and 
very good reasons for giving it can be brought forward. — Pro- 
fessor Johann Ackerl. 



XXXI. THE ADMINISTRATION OF THE VIATI- 
CUM IN CASES OF CANCER OF THE ESOPHA- 
GUS (GULLET) 

In a certain hospital the last Sacraments have to be administered 
to two patients suffering from a malignant or cancerous growth 
in the esophagus. In the case of one the growth is situated at the 
opening of the esophagus into the stomach, so that, in the physi- 
cian's opinion, the passage is completely closed, and the patient has 
to be fed artificially and cannot live more than a very short time. 
The question arises whether, under such circumstances, he is still 
able to receive the holy Eucharist sacramentally. 

From the very nature of this most holy Sacrament it follows 
that, in order to produce the sacramental effect in the recipient, it 
must be received after the fashion of bodily food. In his Moral 
Theology, de Eiicharistia, n. 226, on the mode of this reception, St. 
Alphonsus quotes Busenbaum's short text without entering into any 
discussion of the subject, and refers the reader to Bonacina. Bu- 
senbaum writes as follows : ( i ) " Gratia datur in prima manduca- 
tione etiam primae partis, cum sit totitm sacramenfum: manducatio 
autem dicitur trajectio ex ore versus stomachum, etsi alii dicant, 
gratiam tum primum dari, cum pars aliqua est in stomachum 
recepta." 

(2) " Species non sunt retinendae in ore tamdiu, donee penitus 
perefint: quia tunc non m,anducaretur Christus, nee gratia sacra- 
menti conferretur, uti nee si moriaris, dum hostia adhuc est in ore." 

The passage in Bonacina to which St. Alphonsus refers is in Disp. 
128 



THE ADMINISTRATION OF TEE VIATICUM 129 

IV. Quaest. IV. P. II. n. i : ''" Eucharistia producit effectus, qtiando 
aliqiia pars hostiae et sanguinis deglutita est, et pervenit ad ventricu- 
lum. Ratio est, turn quia, itt Eucharistia producat suum effectum, 
requiritur, ut applicetur siiscipienti; dicitur aiitem applicata suscipi- 
enti, quando aliqua pars hostiae deglutita est, et transmissa est ad 
stomachum juxta illud Joann. 6. ' Qui manducat me, et ipse vivet 
propter me.' Turn quia hoc Sacramentum confert gratiam per modum 
nutrimenti; sed cibus nutrit, quando transmittitur ad stomachum: 
ergo Sacramentum Eucharistiae confert gratiam, quando transmitti- 
tur ad stomachum, in eo scilicet instanti, in quo verum est dicere, 
nunc deglutitum est, aut potatum est. Ita Sot. etc. — et alii com- 
muniter." This is Bonacina's opinion, and Capellmann adopts the 
same view, for he says in his Pastoral-Medicin, pp. 144, 145 : " Cir- 
cumstances may arise which render the absorption of food into 
the body difficult or even impossible. No matter what may be 
the obstacle, the administration of Holy Communion is possible as 
long as the sick person can swallow. If, however, he is unable to 
swallow, there can be no manducatio, and in such cases Communion 
cannot be administered even in articulo mortis." Capellmann men- 
tions (pp. 140, 141) an opinion expressed by von Olfers in his 
Pastoral-Medicin, and says : " Von Olfers argues logically that 
swallowing is essential to the conception of manducare, but he 
thinks it is enough to receive the Holy Eucharist into one's mouth, 
with the intention of assimilating it. I personally adhere to the 
old opinion, and believe that desecration of the Sacrament might 
easily result from the adoption of von Olfers' views." On p. 145 
Capellmann again refers to the same subject, and says: "If von 
Olfers were right in his interpretation of manducatio, in cases 
where the sick person cannot swallow, it would be permissible to 
introduce a small particle into his mouth, and allow it to be gradu- 



130 THE CASUIST— VOL. IV. 

ally absorbed or eliminated subsequently with the saliva. I think, 
however, that, quite apart from the incompleteness of the assimila- 
tion, the reverence due to the Sacrament would be wanting." 

Where it is a question of assuring the sacramental effects of the 
Holy Eucharist, we prefer the stricter view, extra casum necessita- 
tis, and we regard it as important to take care that the particles for 
consecration are neither too small nor excessively thin, and that the 
sacred Host should not be kept too long in the mouth ; yet in casu 
necessitatis for the benefit of a dying person we gladly accept the 
broader interpretation of manducare, if it is possible to claim on 
its behalf at least sufficient probability, in accordance with the 
general rules de administratione Sacramentorum in casu necessitatis. 

In order to assure ourselves of this probability, let us bear the 
following points in mind : 

( 1 ) A patient, suffering from this disease, either vomits all the 
food that passes into the esophagus, and does so, as a rule, im- 
mediately after swallowing it, or he can retain a very minute 
quantity, such as a little water with a particle of a host. It is well 
therefore to experiment with an unconsecrated particle and water, 
or sugared water ; if vomiting follows, it is of course impossible to 
administer the Viaticum. 

(2) If vomiting does not follow, according to the testimony of 
experienced physicians the food may have come in contact with 
parts of the esophagus that are already dead, and decomposes me- 
chanically without supplying any nourishment to the organism ; 
or — and this seems more probable — it meets with parts of the 
esophagus that are still active, and undergoes a kind of assimilation, 
which can be regarded as to some extent equivalent to digestion 
and nutrition. If the tendency to vomit did not make it impossible 
to introduce sufficient nourishment into the esophagus, the patient 



TEE ADMIN ISTRA TION OF THE VIA TICUM 131 

might be kept alive for some time in this way, as is not infrequently 
done in cases where the patient is fed through the rectum, al- 
though the food does not then reach the stomach. 

(3) From what has been said we may draw the following 
conclusions : 

(a) The sick man is able to receive Holy Communion in a way 
in which it very probably serves as nourishment, and thus the 
chief condition essential to its sacramental reception is fulfilled, 
" Hoc Sacramentum confert gratiam per modiim nutrimenti," 
Bonac. I. c. (b) The manner in which this divine food is as- 
similated by the patient does not appear to be opposed to the re- 
quirements of theologians : Busenbaum ap. St. Alph., " gratia datiir 
in prima manducatione, mandncatio autem dicitur trajectio ex ore 
versus stomachuni." (c) According to Olfers' opinion, to which 
reference has been made above, and which from the physiological 
point of view is very probably correct, the reception of the food into 
the oral cavity, and the change that it there undergoes, satisfy the 
conception of " mandiicare." With still greater probability there- 
fore may we regard the swallowing of the sacramental species, and 
the change that it undergoes in the lower part of the esophagus to 
be a " manducatio " sufficient to produce the sacramental effect. 
(d) Finally it may be pointed out that there is no other possible 
way of giving the sick man Holy Communion except by adminis- 
tering to him the species panis. It is absolutely forbidden to give 
him Communion sub specie vini, which might perhaps still reach 
the stomach. St. Alphonsus writes on this subject: " Pcccat 
(sacerdos) si morituro, qui oh linguae ariditatem iion potest hostiam 
trajiccre, det species vini, ut communissime dicunt, quia praeceptuni 
viatici non ohligat, quando ncqiiit sumi dcbito mode ct ecclcsiac . 
ritu," lib. VI. n. 245. Any artificial incorporation of the sacred 



132 THE CASUIST— VOL. IV. 

Host is equally inadmissible, and Capellmann is right in saying: 
" If it is impossible for the sick person to swallow, no manducatio 
can take place. It would be irreverent to introduce a particle of 
the sacred Host into the stomach through an esophageal sound or 
even through a gastric fistula." 

To conclude therefore: It is still possible for the sick man in 
question to receive Holy Communion in a way which formally 
satisfies the requirements of the Church, and which very probably 
suffices to produce its sacramental effect: as he is in danger of 
death, it is his privilege and duty to receive Holy Viaticum, and 
the priest may give it to him, if he is otherwise in good disposition 
and there is no apparent danger of irreverence. 

The second patient has a malignant tumor in the oral cavity, at 
the entrance to the esophagus, and the growth has become so large 
that any examination of it confirms the doctor's opinion that special 
manual dexterity is required, in order to insert some fluid nourish- 
ment into the esophagus in such a way that he can swallow it. As 
the chaplain of the hospital does not believe himself to possess this 
dexterity, he takes, when administering the Viaticum, a spoonful of 
water, places in it a particle of the sacred species, and hands it to 
the Sister, who is nursing the patient. She gives it to him so skil- 
fully that he is able to swallow it down and it reaches his stomach. 

The question here is : Did the priest act rightly in administering 
the Viaticum to this patient by means of a spoon, and through the 
agency of the Sister of Charity ? 

( I ) As to using a spoon in administering Holy Communion, St. 
Alphonsus says that it may be done in two cases, vis., with patients 
suffering from plague, to protect the priest from infection, and 
when a sick man is unable, owing to the dryness of his mouth, to 
swallow the sacred Host without wine or water, and he says that 



TEE ADMINISTRATION OF TEE VIATICUM 



133 



although this opinion is contrary to that of several theologians, it 
is probably correct. Cf. Theol. mor., lib. VI. n. 244, 6, and es- 
pecially Horn. A post. Tract., XV. n. 12. We need not hesitate to 
extend this permission to the case under discussion, and therefore 
the chaplain cannot be blamed for using a spoon, as otherwise it 
would not have been possible to administer Holy Communion to 
this patient. 

(2) We have next to consider whether he did right in handing 
the sacred Host to the Sister, for her to give it to the patient. Two 
prohibitions issued by the Church seem opposed to- this course ; lay- 
men and clerics, who are not priests or deacons, are forbidden to 
touch the most holy Sacrament, and must not administer it to 
themselves or others. With reference to the first prohibition Marc, 
Institutiones morales, n. 1632, says: "Si {vas sacrum) acta conti- 
iieat Ss. Sacramentiun, extra casnm necessitatis sen pericnlum pro- 
fanationis, niilli licet, citra culpam gravem, illud tangere, etiam 
mediate, praeterquam sacerdoti ant diacono. Ita communiter. But, 
on the other hand, in justification of the chaplain's action, we may 
argue that, besides pericnlum profanationis, theologians admit of 
other casus necessitatis as exceptional cases when this prohibition 
must be disregarded. Such, for instance, is the nccessitas honesta- 
tis: " si hostia decidat super libera mulieris, non debet sacerdos ipse 
aiiferre, sed mulier ipsa manu abstrakaf et reponat in ciborio." 
S. Alph., lib. VI. n. 250. Schiich says, in his Past.-Thcol, § 280 : 
" If a consecrated Host falls into a woman's clothing, or into any 
place where the priest cannot pick it up with decency, the woman 
herself must place it in her mouth, and afterwards wash her hands." 

It seems, therefore, that the necessitas viatici is as weighty a 
reason, as this and other exceptional cases, for disregarding the 
prohibition and justifying the chaplain's action. 



134 TEE CASUIST— VOL. IV. 

There is, however, another special instruction forbidding priests 
to entrust the administration of the Holy Eucharist to the laity (cf. 
c. Pervenit ^p. de consecr. dist. 2), and some great theologians con- 
sider that it applies also to the necessitas viatici. But against this 
there are two arguments which may be adduced in support of the 
chaplain's opinion. In the first place the help given by the nun in 
this particular case can scarcely be regarded as an administration 
of Holy Communion. We have seen that a woman into whose 
clothes a consecrated Host has fallen is allowed to place it in her 
own mouth, instead of handing it to the priest and then receiving 
it from him. This proceeding is sanctioned by Schiich, and by 
Pope Benedict XIV, whom the author follows on this subject, but 
they cannot be said to have thus permitted a woman to administer 
Holy Communion. Even if, in the present case, the action of the 
nun is regarded as a real administration of the Viaticum, the priest, 
who commissioned her to act as she did, can appeal to the doctrine 
of St. Alphonsus, who asks (lib. VI. n. 237, III) : " an liceat laico 
in necessitate ministrare viaticum morihundo? " and answers the 
question affirmatively, refuting the contrary opinion; although 
of course it is permissible only where it is impossible for a priest 
or deacon to administer it, and a layman can do so without giving 
scandal. 

As in the present case the priest could either not have given the 
man the Viaticum at all, or could not have done so without great 
risk of irreverence, by causing him to vomit, the assistance of the 
nun was abundantly justified, although it would certainly have been 
grievously sinful under other circumstances; and the priest de- 
serves nothing but praise for having made it possible for the sick 
man to receive the last Sacraments, and so to do his duty. — 
P. Johann Schwienbacher, C.SS.R. 



XXXII. A QUESTIONABLE PENANCE 

In imposing a penance a confessor ought to be careful not to tell 
children to do anything which motives of shame or shyness would 
easily prevent their doing, such as to beg pardon of parents or 
others. The infidel poet Alfieri in his Memorie autobiografiche says 
that, when he was seven or eight years old, he made his first con- 
fession to a Carmelite, who told him to throw himself down at his 
mother's feet just before dinner and publicly ask her to forgive him 
his faults. When the time came and all had assembled, he could 
not make up his mind to perform his penance or to utter a word, 
and so, as he says : " I conceived a violent hatred for that monk, 
and thenceforth had very little inclination to receive this Sacra- 
ment." This was the beginning of his godless life. Father Bal- 
lerini remarks regarding the imposition of such a penance : " Im- 
prudentiae istius friictum hand raro hiinc reperies extitissc, ut 
pueri neque a confessario mutationem poenitentiae neqtie a paren- 
tibus sive aliis aiisi veniam petere, multo minus deinde peccatum 
omissae poenitentiae confiteri audentes, confessioniim sacrilegarum 
seriem inchoaverint et ad multos annos addita sacrilega coimminione 
protraxerint." 



^35 



XXXIII. A *: SALTED" GOLD MINE 

The following case for consideration has been sent from South 
Africa : 

A certain Solomon fancies that he has discovered a very rich 
gold mine, and in order to sell it more easily, and of course for a 
higher price, he " salts " it, as the saying is, i. e. he buries in his 
mine rich gold ore secured from other gold mines. Some capitalists 
test the mine, and, being highly satisfied with the result, they buy 
Solomon's land for an enormous price. A company is formed to 
work it, but the output does not come up to expectations ; in fact, 
the mine does not even pay the cost of working it. Solomon de- 
clares that the mine was not worked properly, and that all sorts of 
unnecessary expenses were incurred ; and this is undoubtedly true. 
It seems probable that under different circumstances the mine might 
have repaid the capital, with possibly five per cent interest. Is 
Solomon obliged to make restitution in full or in part? The ques- 
tion is one regarding the just price (pretiiim justum) of a thing. 
This can be regulated in various ways — ^by law {legale), by the 
general estimate of its value {vulgare s. naturale), by an agreement 
between buyer and seller in cases where the value cannot be other- 
wise ascertained {conventionale) , and by bidding at a public auc- 
tion {conciirsu effectum). The common price {pretiiim vulgare) 
seems fair if it corresponds to the thing's value, as usually estimated. 
As, however, people may judge very differently of the value of 
anything, we distinguish the highest, the average, and the lowest 
just prices {pretium justum summum, medium, infimum). Apart 

136 



A " SALTED " GOLD MINE 137 

from special circumstances, which we need not discuss here, any- 
thing may be sold fairly for the highest, average, or lowest 
just price. But a sin of injustice is committed if by deception or 
unfair trickery the highest just price is obtained from the buyer, or 
if any higher price is obtained than the buyer without that trickery, 
would have paid. 

We are now in a position to answer the question. Solomon asserts 
that with prudent management, and with care to avoid unnecessary 
expense, the capital might have been refunded and five per cent in- 
terest paid. This is merely a matter of probability, not of certainty. 
A res existens in spe probabili can be the subject of an agreement, 
and the probable profits can be assessed at a definite sum of money ; 
but equity requires that the probable profits in an agreement shall be 
estimated lower than the certain profits. Even if the mine had really 
been as profitable as Solomon represented it to be, he deceived the 
purchasers by " salting " it, and so induced them to pay an enormous 
price for it. He is therefore bound to repay the amount by which his 
trickery augmented the price of the mine. He is not responsible for 
the loss incurred by the company by their unwise methods of exploi- 
tation and by their unnecessary expenditure, for, as matters stand, 
his dishonesty was not the efficient cause of this loss. — Dr. A. 
Goepfert 



XXXIV. NEVER REFUSE TO HEAR A CONFESSION 

( I ) A zealous priest told the following story : " I had been 
acting temporarily as parish priest in a very busy place. After 
six months the new pastor was appointed. He wrote to announce 
his arrival on a certain day, and I was naturally very busy on the 
eve of my departure. I had been in the confessional from an 
early hour until ten o'clock in the morning, and could only hear 
about half the people who were waiting, for I had to say good-bye 
to the school children, and was to take the Holy Sacrament to two 
sick people. I returned from my visit to them quite exhausted, 
long past dinner-time, and there were still many things that I had 
to arrange before starting the next day on my twelve hours' 
journey back to the town where I was assistant, and where a sick 
pastor was eagerly awaiting me. My time during the afternoon 
was constantly interrupted by visitors, who came to bid farewell 
and to bring me little tokens of their affection. Towards evening 
a perfect stranger came in and asked me to hear his confession. I 
begged him to put it off, saying that I was very tired and had 
hardly time to arrange for my departure. He insisted, however, 
and repeated his request, until I at last yielded to his importunity, 
though sorely against my will. His soul was burdened with many 
grievous sins and he had not been to confession for seven years. 
When he began his confession he said that God had inspired him 
with great confidence in me, and, if I had not heard him, he would 
probably not have gone to confession for a long time, but would 
have continued in his sinful career." 

138 



NEVER REFUSE TO HEAR A CONFESSION 139 

(2) Another priest, no less conscientious and zealous than the 
first, said : " One day I had been hearing confessions from early 
in the morning until noon, and was glad when I had given absolu- 
tion to my last penitent. I went into the sacristy to make my 
Gratiarum actio post missam, for, two hours previously, I had in- 
terrupted the confessions in order to say Mass. I had just begun 
.my thanksgiving, when a stranger came up to me and asked me 
to hear his confession. I was looking forward to being free to 
return to my comfortable room, and did not like being disturbed, so 
I asked the man rather roughly to what parish he belonged. He 
mentioned a parish in the neighborhood, so I told him to go to his 
own priest, for, our parish being very large, we had more than 
enough to do with our own people. 

" During this short conversation I did not rise from the prie-dieu, 
for I wished to finish my thanksgiving and then go away. The 
man, however, remained standing beside me ; and, as I prayed, the 
thought came into my mind that I resembled a Pharisee, who re- 
garded it as a sin to omit or cut short a prayer, but was unwilling 
to do his neighbor a great service. This thought filled me with 
shame and made me more charitable. I rose from my knees and 
calmly invited the man to follow me to the confessional. His 
confession convinced me that he could not possibly have gone to 
his own parish priest, for it would have cost him an amount of 
heroism, of which he was scarcely capable, to force himself to 
do so." — Canon Anton Skocdopole. 



XXXV. THE CONFESSION OF A WOMAN WHO 
HAS ON HER OWN AUTHORITY LEFT HER 
HUSBAND 

Pius, a young confessor, is very zealous in hearing confessions, 
and as his piety and kindliness have won him general confidence, it 
often happens that penitents come to him from other parishes to 
ask his advice in their difficulties. He frequently has to deal with 
wives living apart from their husbands without the sanction of the 
Church. 

Not long ago one woman confessed that she was not living with 
her husband, because he was an adulterer ; another said she could 
not remain with her husband, because he ill-treated, abused and 
beat her, therefore she had left him. 

The question arises: For what reasons may a wife leave her 
husband, and if she leaves him on her own authority, can she 
receive absolution? 

Answer. — A wife may leave her husband secundum jus publicum 
propria auctoritate, if he has committed adultery, but she must be 
morally certain of his guilt, mere suspicion is not enough. St. 
Alphonsus says on this subject {Th. mor., VI. 960): "Cerium 
est, virum posse dimittere iixorem adulteram, idem communiter 
dicunt doctores de viro adultero, quem uxor possit relinquere." The 
confessor ought to point out to her that it is her duty, if possible, 
to ask the ecclesiastical authorities to grant her a separation ; if this 
be not possible she need not be disturbed. In the same way the 
wife may probabilius leave her husband propria auctoritate, if he 

140 



CONFESSION OF A WOMAN WHO HAS LEFT HUSBAND 141 

ill-treats her or beats her, and if delay might be dangerous, or if 
she does not bring her complaint before the ecclesiastical court, or 
cannot bring forward witnesses to her husband's ill-treatment. 

St. Alphonsus says (VI. 971) : "An tunc possit recedere propria 
auctoritatef Affinno, si periculum sit in mora, vel si non posset liti- 
gare, vel saevitiatn probare." If, however, she is able to find wit- 
nesses to testify to her ill-treatment, and can bring her complaint 
before the ecclesiastical court, she should await its decision. 

Theologians point out, however, that if there are real grounds 
for separation, and the wife acts in bona fide, and there is reason 
to fear that the information will do no good, then the confessor 
need not draw her attention to this duty. Scavini says (IV. 539) : 
" Si causae satis graves et canonicae existant, ut conjuges ab invicem 
separentur, juxta pliires non esscnt inquietandi, si id agerent propria 
anctoritate scandalo et admiratione secliisa; nam pluribiis nimis 
grave est quod judicialem sententiam cogantur provocare, saltern id 
tolerandunv dicunt, si fiat ad temp us tantummodo." A remark 
made by the renowned Dr. Miiller (III. 505) is also worth noticing: 
" Nee inquietandos puto conjuges, qui civili tantum anctoritate sunt 
separati, si versentur in bona fide, vix enim erit fructus admonitionis 
sperandus." 

From what has been said, therefore, it appears that Pius can 
absolve the penitents in question, if they are bona fide, or if they 
cannot easily bring forward a demand for separation. — Professor 
Franz Janis. 



XXXVI. CASE OF A MARRIAGE RENDERED IN- 
VALID BY FAILURE TO APPLY FOR A DIS- 
PENSATION AT THE PROPER TIME 

A week before her marriage with Titius, Bertha made a general 
confession in a monastic church. Her confessor discovered an 
impedimentum dirimens, viz., affinitas ex copula illicita cum sponsi 
■ consanguineo in secundo gradu. He pointed out this impediment 
to her marriage, and invited her to come to him again before it took 
place, in order that he might obtain authority to give her a dis- 
pensation. Bertha promised to come, but did not keep her word, 
and her confessor, Justinus, did not see her again until a fortnight 
after her wedding, when she apologized for not having come on the 
appointed day, because she had been prevented from doing so, and 
thought she could come later to receive her dispensation, Justinus 
was doubtful whether he could still make use of the authority asked 
and received three weeks before, but, having made up his mind, he 
told her that the dispensation was not valid, and, as her marriage 
was therefore null and void, he forbade her to hve as a wife with 
her husband, until a fresh dispensation had been obtained and given 
to her. 

The question arises: (i) Was Justinus right in declaring the 
first dispensation to be null and void? (2) Was he justified in 
forbidding Bertha to live with her husband ? 

> Answer to (i). — The dispensation was given in forma commis- 
soria, not in forma gratiosa, and the former removes the impediment 
only if it is given by the Commissarius to the person concerned. 

142 



FAILURE OF DISPENSA TION A T PROPER TIME 143 

The impedinientiim dirimens existed therefore at the time when 
Bertha went through the form of marriage, and rendered it invaUd. 
Justinus had authority to grant a dispensation from the impediment 
before the marriage; did he possess the same power after it had 
been solemnized? He concluded that he did not possess it, and we 
believe him to be right. The ordinary had authorized him to dis- 
pense in ordine ad matrimonium contrahendum; but matrimonio 
contracto the dispensation obtained by Justinus stands on a level 
with a dispensatio subreptitia. According to Laymann {Theol. 
mor., lib. I. tract. IV. cap. xxii. n. 19) rescripta gratiae subreptitia 
censentur, quaecunque per taciturnitatem veri per se intrinsece 
ad rem pertinentis impetrata fuerunt, si princeps veritate expressa 
atque intellecta probabiliter non concessisset dispcnsationem vel 
gratiam, vel certe tali forma et modo non concessisset sed cum ad- 
jiuicta conditione et onere. The dispensatio super impedimentum 
affinitatis is essentially different matrimonio contracto from what it 
is ad matrimonium contrahendum. The Council of Trent (sess. 24 
de reform, matr., cap 5) gave the following decision on this subject : 
Si quis intra gradus prohibitos scienter matrimonium contrahere 
praesumerit, separatur et spe dispensationis consequendae careat. 
Idqiie in eo midto magis locum habeat, qui non tantum matrimonium 
contrahere sed etiam consummare ausus fuerit. Quodsi ignoranter id 
fecerit, si quidem solemnitates requisitas in contrahendo matrimonio 
neglexerit, eisdem subjiciatur poenis. Non enim dignus est, qui 
Ecclesiae benignitatem facile experiatur, cujus salubria praecepta 
temere contempsit. Si vero solemnitatibus adhibitis impedimentum 
aliquod postea subesse cognoscatur, cujus ille probabilem igno- 
rantiam habuit, turn facilius cum eo et gratis dispensari poterit. 

To obtain a dispensation from the impedimentum affinitatis is 
therefore much more difficult after the marriage, though invalid, has 



144 THE CASUIST— VOL. IV. 

taken place than before. It is not granted in the same form or under 
the same conditions, and the things required of the persons dis- 
pensed are different. Therefore to regard a dispensation, granted 
in ordine ad matrimonimn contrahendiim, as applicable to a mar- 
riage that took place before the dispensation was granted, is a 
mistake; such a dispensation is equivalent to a dispensatio siibrep- 
titia, and, like it, has no force. If a dispensation is sought after 
a marriage has been invalidly concluded, and no mention is made 
of the fact that the marriage has already taken place, the dispensa- 
tion, if granted, is invalid. The authority given to Justinus to 
grant a dispensation to his penitent, so that the marriage might 
take place, became invalid as soon as Bertha went through the 
marriage ceremony in spite of the diriment impediment. 

In the instructions issued by the S. Congregation de Propag. 
Fide, May 9, 1877, a list is given of things that must be stated 
when application is made for a dispensation, " ita ut si etiam igno- 
rpnter taceatur Veritas aut narretur falsitas, dispensatio mdla effi- 
catur"; and amongst these things in no. 6 mention is made of 
" variae circumstantiae , so. an matrimonium sit contmhendum vel 
coiitractum ; si jam contractum, aperiri debet, an bona fide saltern 
ex parte unius, vel cum scientia impedimenti . . .; si mala fide, 
saltern unius partis, seu cum scientia impedimenti." 

Since, then, the dispensation is invalid, if, in the request for it, 
the fact that the marriage has already taken place is not mentioned, 
it follows a. pari that a dispensation, granted in ordine ad matri- 
monium contrahendum, loses all value as soon as the marriage 
takes place in spite of the diriment impediment, which still 
exists, because the persons concerned have not received the 
dispensation. 

It is not necessary to state whether the marriage between Bertha 



FAILURE OF DISPENSA TION A T PROPER TIME 145 

and Titius has been consummated since Leo XIII promulgated 
the new regulation on June 25, 1885. 

Answer to (2). — ^Justinus forbade his penitent, whose marriage 
was invalid, to live with her husband until the dispensation was 
procured and given to her. This was certainly the proper course 
for them to follow, if any excuse could be found for their sepa- 
rating temporarily. But it would very seldom happen that such a 
pretext could be found, especially in the case where the woman was 
the person affected. She would naturally return to her husband 
after making her confession, and would continue to live with him. 
To forbid her all conjugal intercourse with him might have most 
disastrous results. What ought a confessor to do under such 
circumstances ? 

Let us consider a somewhat similar case. If the man and woman 
are already in a church, and if everything connected with their 
marriage is prepared, so that their union cannot well be put off, 
St. Alphonsus (lib. VI. n. 613) considers that the priest may pro- 
ceed with the ceremony, even though at that moment he discovers 
a diriment impediment. " Quodsi nullo inodo aliter vitari posset 
gravissimum periciilum infamiae aiit scandali, posset parochus vel 
alius confessarius declarare, quod lex impedimenti eo casu non 
ohligat, quia . . . cessat lex, qiiando potiiis est nociva quani iitilis. 
Et licet hie non cessat finis legis in commimi, sed in particulari, 
cum tamen cesset finis legis in contrariitm, lex etiam cessat, ut 
omnes conveniunt." (Cf. Salm. de Leg., c. 4, n. 6.) 

If the law is not to be regarded as binding in the case mentioned 
by St. Alphonsus, it was, a fortiori, not binding in this case, in 
which the difficulties, the gravissimum pericnhim infamiae ant 
scandali, were still greater. We think, therefore, that Justinus 
ought to have required Bertha at once in the confessional to renew 



146 THE CASUIST— VOL. IV. 

her consensus in matrimonium cum Titio, unless she was in a posi- 
tion to make some excuse for leaving her husband for a few days, 
to pay a visit to a friend, or something of the sort. She was 
probabiliter capable then of giving a valid consent to her marriage, 
prohahiliter therefore on her part her marriage was duly concluded 
when the consent was renewed, and there is no need therefore to 
trouble her with regard to the dehitum. If she were to question 
Justinus further on this point, he would have to say that she and 
her husband might thenceforth live as man and wife, but in all 
probability she would not ask anything of the kind, as ignorant 
people, of the class to which Bertha apparently belongs, do not 
regard conjugal intercourse, in such a case, as fornicatio. Justinus 
ought to have told her to come to confession again very soon. St. 
Alphonsus goes on to say (/. c.) : " Notant tamen auctores, quod 
. . . quantocius {saltern ad majorem securitatem et ad salvandam 
reverentiam legibus ecclesiae debitam) recurri debet ad S. Poeni- 
tentiariam, ut ab ilia dispensatio obtineatur." Justinus should there- 
fore at once apply to the S. Poenitentiaria, explaining all the cir- 
cumstances and asking for a dispensation. After it is granted to 
Bertha, she must once more conditionally renew her consensus, as 
probabiliter the marriage can only now be concluded. Titius may 
be assumed to abide by his previously given consent, and as, in such 
a case, it would hardly be possible to tell him that his marriage 
was invalid, and to ask him to make a renovatio consensus, it is 
enough to secure the validity of the marriage if Bertha renews her 
consent, and Titius abides by his own, renewing it implicitly by 
proofs of conjugal love, many of which are enumerated by 
theologians. 

It appears, from the form in which the dispensation is generally 
granted, that an agreement of this kind is not expedient if very 



FAILURE OF DISPENSATION AT PROPER TIME 147 

great difficulties would arrive in case the innocent party became 
aware of the impediment to the marriage. As a safeguard the 
following clause is added to the dispensation : quodsi hacc certi- 
oratio absque gravi periculo fieri neqiieat, renovato consensu juxta 
regulas a probatis auctoribus traditas. Justinus would adopt the 
best and safest course if he aimed at sanatio in radice; as Bertha 
knows of the impediment to her marriage, she must renew her 
consent at the sanatio in radice; for in this case, as Lehmkuhl points 
out, nan perfecta sanatio in radice est, sed solum alterius conjugis 
ignari consensus in radice sanatiir (P. II. n. 831 ; cf. n. 825 sqq.). — 
Dr. Huppert. 



XXXVII. THE SEAL OF THE CONFESSIONAL 

A hospital chaplain asks advice in the following circumstances : 
Many concubinarii are brought to our hospital, who, according to 
an excellent custom, are invited to make their confession and often 
do so. If they are seriously ill, we do our utmost to arouse in them 
true contrition and purpose of amendment. But sometimes they are 
not very ill, and the confessor learns only in the course of their 
confession that they are concubinarii ; if they refuse altogether to 
abandon their sinful life, and will not even promise to avoid im- 
morality, then he cannot of course give them absolution. In this 
case, how can he avoid breaking the seal of the confessional ? Above 
the head of each patient hangs a card, so that the priest may see 
who has been recently admitted and whose confession he has to 
hear. If the patient makes his confession, the card remains hanging, 
to show who is to receive Holy Communion the next morning ; it 
is removed after Communion has been given. If the patient makes 
no confession, the priest takes down the card. In the case that has 
been suggested, the nurse and all the other patients in the ward 
know that the priest has heard the sick man's confession. If he 
cannot give him absolution, and takes down the card, he betrays, 
out of confession, that the penitent has not been absolved; is this 
not a fractio sigilli? Is it correct to think that the patient has only 
himself to blame if he is not absolved, and this is betrayed by or 
inferred from the priest's behavior? Or is it correct to regard the 
confession as no real confession at all, because the penitent was not 
in the proper disposition and did not fulfil the required conditions ? 

148 



TEE SEAL OF THE CONFESSIONAL 149 

li the priest tells the penitent that he cannot absolve him, but, in 
order not to break the seal of the confessional, he will give him his 
blessing and trust him to find some pretext for not receiving Holy- 
Communion, he may be sure that the man will nevertheless com- 
municate, and add sacrilege to his other sins. 

Is the following a correct course of action? I tell the sick man 
that I cannot give him absolution, but he must pray to the Holy 
Ghost for light and make a better preparation ; that I mean to stop his 
confession, remove the card, and tell the nurse, if she asks whether 
he is to receive Holy Communion, that he is going to make more 
preparation. Then I stand up, and do as I have said. Is there any 
f radio sigilli in this case? If so, how ought I to act? 

The whole question turns on the seal of the confessional, which 
originates in sacramental confession, i. e., in a confession made 
with a view to receiving sacramental absolution {in or dine ad sac- 
ramentalem absolutionem) . A sacramental confession is not (i) a 
purely historical account of sins, such as any one might give in a 
confidential conversation with a priest, without any reference to the 
Sacrament of penance. Nor is it (2) a confession made with the 
intention of asking advice, with no desire to receive the Sacrament, 
although a priest would be bound to keep a secretum naturale. Nor 
is (3) a sacramental confession one made to deceive or mislead a 
confessor, or to obtain some advantage, or to comply with the orders 
of a superior, as if the penitent were to say : " I have not come to 
confess my sins, but because I want to have a certificate of confes- 
sion to show my wife." 

In such a case there is no seal of the confessional, nor need the 
priest give the man any certificate ; yet, as a rule, he is bound to do 
nothing that would put him to shame, nor to seem in any way to 
have broken the seal of the confessional; for, by refusing a cer- 



ISO 



THE CASUIST— VOL. IV. 



tificate, he might lead the people present to imagine that he did so 
because he could not give the man absolution. 

A confession invalidated by some defect, by want of proper dis- 
positions or by sacrilegious omission of some sin on the part of the 
penitent, or by absence of intention or jurisdiction on that of the 
confessor, is nevertheless sacramental. It is only when the penitent 
knowingly makes his confession to a layman, or to a priest not pos- 
sessing proper faculties, that the confession becomes a matter merely 
of a secretum naturale, unless the penitent made his confession to 
a priest in order that the latter might obtain the necessary faculties 
and then give him absolution. Anything that, if made known, 
could bring odium upon the Sacrament or trouble the penitent, 
falls under the seal of the confessional. 

The Lateran Council, IV. c. 21, says : " Caveat fi.utem omnino 
confessarius, ne verho aiit signo aut alio quovis modo aliquatenus 
prodat peccaforem." We must distinguish between a direct and an 
indirect violation of the seal of the confessional. A direct violation 
would take place if a priest expressly revealed anything learnt from 
the penitent under the seal of the confessional; an indirect, if he 
spoke in such a way as to lead others to think his knowledge was 
derived from the confessional, or if he suffered knowledge thus 
derived to influence his external behavior. Nothing but the peni- 
tent's express permission can release a priest from the seal of the 
confessional, and this permission avails only if it is given quite 
voluntarily and is not extorted by feelings of respect (reverentia) . 

If these principles be applied to the case under discussion, we 
must bear in mind the fact that the confession is sacramental, even 
if the penitent cannot be absolved, because of his want of contrition 
and purpose of amendment. Even if the patient goes to confession 
only because it is part of the regular routine of the hospital, his con- 



THE SEA L OF THE CONFESSIONAL 1 5 1 

fession is sacramental, unless he tells the priest plainly that he has no 
intention of making a real confession, but is pretending to do so, 
for the sake of appearances. The propounder of the question has 
not told us how the penitent received the confessor's proposal, 
and whether he agreed to it or not. If he did not expressly agree 
to it, there was an indirect violation of the seal of the confes- 
sional, because the priest, in taking down the card, allowed his 
outward behavior to be influenced by knowledge obtained from the 
man's confession. The nurse and the other patients would be 
very likely to think that the penitent had not received absolution, 
because he had not the proper disposition. 

The suggestion that the penitent has only himself to blame if, 
owing to his bad disposition, he is not absolved, and this becomes 
known through the priest's actions, is inadmissible, since a con- 
fessor may not allow his outward behavior to be influenced by 
information obtained in a confession. If the penitent refuses, or 
does not expressly give, permission to the priest to remove the 
card, and to make the remark proposed to the nurse, the confessor 
can do nothing but forbid him to receive Holy Communion be- 
cause he has not been absolved. The patient can then tell the 
nurse or the priest (not in confession) that he does not intend to 
communicate, or he may purposely take some food, so as to make 
it impossible for him to do so. If, however, he will not consent 
to do anything of the kind, in spite of the priest's persuasion, 
there is no help for it but for the priest to leave him to his fate 
and to give him Holy Communion on the following day. 

If the penitent agrees to what the priest proposes and does so 
quite voluntarily (this is a very important point), there is no viola- 
tion of the seal of the confessional in the priest's action, but the 
nurse and other patients might very easily suspect one, since he 



1 5 2 THE CASUIST— VOL. IV. 

alone takes action and gives the explanation of it. In this way 
odium would be brought upon the Sacrament, and on this account 
this line of conduct seems inadmissible itl the case in question. The 
priest can do nothing, therefore, but ask the patient to refuse Com- 
munion, and to declare immediately after his confession that he is 
not going to communicate the next morning. He must not, how- 
ever, after the confession is finished, ask the sick man whether 
he intends to communicate, in order by means of this question to 
elicit the desired declaration, for this would involve a violation of 
the seal of the confessional ; unless indeed the patient agrees to his 
asking the question so as to have an opportunity of making the 
declaration. If the patient himself says that he is not going to 
receive Communion, there is less reason to fear arousing siispicio 
fracti sigilli. If the confessor is in the habit of asking the hospital 
patients whether they wish to receive Communion, he may put the 
question out of confession, and as the chaplain who raised the dis- 
cussion is liable often to encounter difficulties such as he has de- 
scribed, I should advise him henceforth to ask every patient after, 
and not during his confession, some question regarding his Com- 
munion. — Dr. A. Goepfert. 



XXXVIII. PARTIALITY IN BISHOP'S APPOINT- 
MENT NOT SIMONY 

The priest Fabius asked his Bishop for his release, which 
was promised if he could produce evidence of having been ac- 
cepted in another diocese. In a conversation with Fabius the 
Bishop offered him the pastorship at a certain place. Several other 
priests were anxious to obtain this pastorship, all of them more 
worthy than Fabius, but nevertheless the Bishop selected Fabius. 
We are asked to decide whether this preference is to be regarded 
as simony inasmuch as the Bishop, knowing Fabius to be the least 
suitable candidate for the rectorship, promised it to Fabius in 
order to retain the roving priest in his diocese. In this case, there- 
fore, the studiosa voluntas would be the Bishop's word pledged 
to Fabius, the pretium temporale would be Fabius himself, whom 
the Bishop desired to keep in his diocese, and the rectorate is the 
spirituale, or rather the spirituali annexum. 

Against this proposition the following remarks may be made : 
The assumption that Fabius is the price for which the Bishop 
has given the position to the same Fabius, is obviously too far- 
fetched. We may more properly regard Fabius, or rather his con- 
tinued residence in the diocese, as the object which the ordinary 
wishes to secure at the price of the position. This continued resi- 
dence in the diocese is not a temporale, in the sense of the defini- 
tion of simony accepted by theologians, and certainly it is no obse- 
qitium, taking the place of money payment, but it is simply a matter 
of continuing the canonical connection between a priest and the 

^55 



154 TEE CASUIST— VOL. IV. 

diocese. This connection is not of a private, but of a public nature ; 
it is not temporal, but spiritual, and may fittingly be termed a spirit- 
uali annexum. Hence it follows that to promise a priest admittance 
to the ranks of the clergy in a diocese, in return for payment of 
money, would be simony; but no simony is involved if a priest is 
induced simply to remain a member of the diocesan clergy by a 
promise of money or by other means to which a money value can 
be assigned. Still less can there be any suggestion of simony if 
the means employed to induce a priest to remain in the diocese are 
altogether of an ecclesiastical nature, even a spiriUiali annexum, 
especially a benefice or some similar position in the Church. 

The common practise is in harmony with this view, for a Bishop 
is free to refuse to accept the resignation of a priest, who has not 
yet received a pastorship, and to give as excuse that a suitable bene- 
fice will shortly be conferred upon him. It is true that this must 
not be understood as meaning that the ordinary may give a bind- 
ing promise to confer upon him some particular place not yet 
vacant. To promise a position held by some one else would be to 
confer an unlawful privilege. The only thing that the Bishop 
can do is to promise a priest who wants to leave the diocese to do 
what he can to further his interests. It would be a mistake to 
lay it down as a principle that the Bishop would in every case be 
right in retaining his clergy by means of such promises. The 
matter is left to the discretion of the ordinary to act as he thinks 
best. He will do well to make no promise when there is any reason 
to think that the priest, by tendering his resignation, is bringing 
pressure to bear upon the Bishop. 

Although now and then a Bishop may go too far in showing 
partiality to a priest, and may even give support to one unworthy 
of it, there can still be no suggestion of simony. We ought not 



PARTIALITY IN BISHOP'S APPOINTMENT 155 

to forget that the meaning of Simonia juris divini must be inter- 
preted strictly, as must also the laws concerning Simonia juris ec- 
clesiastici, and they may not be extended to other cases not men- 
tioned in the law. There is no law in existence which declares 
partiality or favoritism on part of a Bishop to be in simony. 

If the Bishop was aware that he was selecting an unsuitable 
person, or one less suitable than other candidates, for the rectorship, 
he acted wrongly, but not simoniacally. This is quite clear from 
the fact that ecclesiastical law furnishes a particular means {viz., 
appellatio a mala relatione examinatorum and appellatio ah irra- 
tionabili judicio episcopi) for dealing with the analogous cases of 
a biased judgment of the qualifications of candidates for a rectorate, 
by synodal examiners, and of an undue selection of the Bishop, but 
there is no allusion to a charge of simony. In all these cases the 
immediate ground of complaint is an act alleged to be unjust, mis- 
taken, or partial; the sin of simony may of course be committed 
in connection with an unjust action, but that it has been com- 
mitted requires independent proof. We can speak of simony only 
when the recognized indicia of this oifense are present, viz., an 
unlawful request for, or acceptance of, money and money's worth 
in return for some spiritual or ecclesiastical service. — Dr. Rudolf 
Ritter von Scherer. 



XXXIX. A MISTAKE REGARDING MASS INTENTION 

Father N., according to the usual practise in his diocese, ar- 
ranges every Saturday the intentions for the Masses during the 
ensuing week, enters them in his register, and announces them on 
Sunday from the pulpit. He is accustomed every day before be- 
ginning his Mass to look up in the register the intention assigned 
to that day. One day he opens the book at a wrong place, and 
reads the intention with which he had already said Mass on the 
same day in the preceding week. He discovers his mistake only 
after he has finished Mass. He consults several priests as to 
whether he is bound to say another Mass for the intention properly 
assigned to the Mass offered for a wrong intention, or whether he 
has fulfilled his obligation in spite of his mistake. The opinions 
of his confratres are divided. Some say that he must offer 
another Mass for that intention, as the second (erroneous) inten- 
tion frustrated the original one. Others express the contrary view. 
Who is right? 

Salvo meliori jiidicio, we believe Father N. not to be bound to 
offer another Mass for the one originally assigned to the day on 
which he made the mistake. The intention with which he offers 
Mass on any particular day depends upon his own decision. On 
the Saturday he fixed the intention with which he meant to say 
Mass on the day in question. This act of his will was certainly 
equivalent to a determination to abide by the intention unless he 
expressly canceled it. In the act of will is implicitly included 

156 



A MISTAKE REGARDING MASS INTENTION 157 

the purpose not to alter the intention or substitute for it another, 
erroneous, one. 

In other words: On that particular day when the mistake oc- 
curred, Father N. had two intentions, the one fixed on the pre- 
ceding Saturday, and the other a wrong one. Which was the 
intentio praedominans? Certainly that which he would have 
chosen, had the two presented themselves to his mind at the 
same time. In this case he would undoubtedly have decided in 
favor of the intention selected on Saturday. This solution of the 
difficulty agrees precisely with Cardinal Lugo's words {De Sacr. 
Disp., 8, n. 121) : "Si hodie velis sacrum crastinum omnino appli- 
care pro Petro, ita tit haec applicatio ex nunc praeferatiir cuilibef ex 
ohlivione hiijiis faciendac (a fortiori intentioni jam persolutae!) ; 
eras vero applices sacrum pro alio, non censebitur revocata appli- 
catio hodierna, quia fuit niagis universalis et revocatoria crastinae." 

Father N. is therefore not bound to say another Mass for the 
(apparently) neglected intention. — Dr. Johann Andlinger. 



XL. THE MEANING OF THE CLAUSE " CUM GRAVI 
(ET DIUTURNA) POENITENTIA SALUTARI " IN 
MARRIAGE DISPENSATIONS 

On February 25, 1890, the Bishop of Nicotera approached the 
Poenitentiaria with reference to this clause, and asked for a more 
precise definition of the amount and length of such a poenitentia 
gravis et diuturna. " Attenta crescente in diem comiptione nee 
non mala voluntafe eorum quibiiscum dispensatiir quique labiis 
promittunt quod deinde reapse minime tenent; attenta etiani ali- 
quoties impossihilitate, in qua versantiir, . . . quaeritur: An possit 
injungi poenitentia per tres tantummodo menses sed pluries in 
hebdomada, quando praescripta est gravis et diuturna, et per unum 
mensem ffl.cienda, quando statuta est gravis poenitentia salutaris? " 

In answer to this question the Poenitentiaria gave no detailed 
explanation of what was to be considered a poenitentia gravis et 
diuturna, but issued only the following general instructions : " In 
praefinienda poenitentiae qualitate, gravitate, duratione, etc., quae 
dispensantis aut delegati arbitrio juri conformi remittuntur, neque 
severitatis, neque humanitatis fines esse excedendos, rationemque 
habendam conditionis, aetatis, infirmitatis, officii sexus, etc., eorum, 
quibus poena irrogari injungitur." ddo 8 April, 1890. 

According, therefore, to the S. Poenitentiaria, every confessor 
applying for a dispensation, is empowered to use his own judg- 
ment in imposing a penance, which, taking the circumstances into 
consideration, shall be regarded as gravis or diuturna. It would 
be a mistake to impose as penance in such cases only a few Our 

158 



" CUM GRA VI (ET DIUTURNA) POENITENTIA SALUTARI" 159 

Fathers, since experience shows us that too easy a penance is apt 
to make penitents think lightly of their transgressions ; but, on the 
other hand, especially at the present time, we must not err on the 
side of excessive severity. The first principle in imposing a 
penance must always be that the penitent should not be frightened 
away from the confessional, but should be confirmed in his resolu- 
tion to make frequent and good confessions in future. In deter- 
mining the gravitas poenitentiae we ought not to refer to obsolete 
precepts ; there is no reason for thinking that the gravis poenitentia 
salutaris required by the Poenitentiaria need differ in kind from 
severe and wholesome penance now usually imposed for grievous 
sin. Nor need the poenitentia diutnrna be measured by years or 
months ; it is simply a penance to be continued for some time, at 
least for some days. Under certain circumstances a penance last- 
ing fourteen, nine, or even three days may be regarded as dluturna 
in the sense in which the word is used by the Sacred Congregation. 
In very few cases ought a penance to be imposed that would last 
for a year or for several months, even if the penance had not to be 
performed daily, but only once a week or once a month. The 
bridal couple may be willing to promise anything, but they will not 
keep their word, and, once married, they may never trouble about 
the matter. It is not advisable to impose frequent confession as 
a penance upon persons who hitherto have only gone to confession 
at Easter. Circumstances vary so much that we can understand 
why the S. Poenitentiaria let the matter rest, after giving the de- 
cision quoted above, and did not make any direct reply to the 
question asked by the Bishop. — Professor Johann Ackerl. 



XLI. SHAM BIDDING AT AN AUCTION 

The property of Sempronius is sold at auction by order of his 
creditors. Sempronius knows that Rufinianus desires to buy his 
garden, so he sends two friends to the sale, who, by bidding against 
Rufinianus, are to raise the price, and they do this so successfully 
that the garden fetches a good sum. The question is asked whether 
Sempronius is bound to make restitution. 

The seller at an auction can act fraudulently in several ways: 
(i) If he conceals a defect in a thing put up for sale; (2) if ha 
puts up men to bid against one another in order to raise the price ; 
(3) if he joins in the bidding himself or through others, unless 

(a) at a compulsory sale, where this is certainly permissible, or 

(b) in places where it is customary for the seller to join in bid- 
ding; (4) if he afterwards substitutes another article for the thing 
sold ; (5) if he refuses to hand over the article for the price offered, 
except in places where it is the custom to withdraw things if a 
suitable price is not reached. 

From what has been said it appears that Sempronius, if liable to 
make restitution, would be so solely because of his intention to 
raise the price of his garden, for, although it is a compulsory sale, 
he does not really make a bid for purchase, either in person or 
through his friends. Two points have to be taken into account. 
Where such tricks are commonly practised, as is very frequently, 
even almost universally, the case, the matter must be judged more 
leniently, as a tacit acquiescence can be assumed on the part of the 

160 



SHAM BIDDING AT AN AUCTION 161 

bidders, who are aware of the custom, and can protect themselves 
by similar devices (Konings, 1002; Aertnys, 490). 

It is also very doubtful what is meant by a sham bidder (ficte 
licitans). Regarded objectively, every bidder is a real bidder, since 
his bid may be the last, in which case he will have to pay the sum 
he offered, although he may not originally have intended to acquire 
the thing. The distinction between a real and a sham bidder is 
therefore only in the intention with which they bid, and is some- 
thing within them. As, at a compulsory sale, it cannot be regarded 
as unfair for the owner to join in the bidding either in person or 
through some one else, it is probably very doubtful whether the 
inward intention in this case can render the outward action unfair. 
Therefore it is scarcely possible to condemn Sempronius for having 
acted unfairly, and therefore he cannot be required to make resti- 
tution. — Dr. A. Goepfert. 



XLII. MAY A RELIC BE VENERATED IF THERE 
IS DOUBT REGARDING ITS AUTHENTICITY? 

Bertha has a great veneration for the relics of saints, and pos- 
sesses a number of them, having inherited some and having re- 
ceived others as gifts. She has papers of authentication for all 
except one, but she venerates that one as well as the rest. A friend 
pointed out that if the relic were not genuine she was guilty of 
superstition. Alarmed at this suggestion, she went to a priest and 
asked if she had really committed a sin, or if she might venerate 
this relic. 

The questions are : (i) Has Bertha committed a sin ? (2) May 
she continue to venerate this relic? 

Answer to (i). — Before we can say whether she has sinned or 
not, we must consider the state of her conscience. If she has acted 
bona fide, believing it to be undoubtedly right and proper to vener- 
ate the relic, she has not sinned; she has acted according to her 
conscience, which must direct our behavior, even when it is in un- 
conscious error. If, however, she felt any doubt as to whether she 
ought to venerate this relic, and whether it was sinful to do so, she 
has committed a sin, because it is not permissible to act in a state 
of doubt. If the further question be asked, whether the sin com- 
mitted ratione dubii is mortal or venial, we answer with St. Alphon- 
sus that it is venial if the person is otherwise conscientious and has 
not perceived the danger of sinning grievously, nor the obligation of 
examining the matter carefully. St. Alphonsus writes as follows 
(Theol. mar., I. 23) : " Quid, si sciat quis aliquid esse malum, sed 

162 



VENERATION OF DOUBTFUL RELIC 163 

dubitaf, an sit mortale aut veniale et cum tali dubio operaturf Alii 
censent hunc peccare graviter vel leviter, proiit in specie objectum 
peccati est grave aut leve. Alii tandem satis probabiliter tenent, 
tantum venialiter peccare, si homo ille minime advertit nee etiam in 
confuso ad periculum graviter peccandi, neque ad obligationem rem 
examinandi, modo etiam homo sit timoratae conscientiae." Under 
other circumstances, the sin would be grievous, Tantum malum, 
quantum crediderit — says St. Bernard. 

Answer to (2). — We have to distinguish public and private ven- 
eration of relics. As a general rule, when there is not moral cer- 
tainty regarding the identity and authenticity of relics, they cannot 
be publicly venerated, nor carried processionaliter. This is plain 
from a decree of the S. Congreg. Rit. 27 September, 181 7. Moral 
certainty regarding the genuineness of relics is present when the 
ecclesiastical authorities have approved them as relics of saints. 

How do matters stand when in some isolated case, in spite of the 
care displayed by the Church in safeguarding the relics of the 
saints, some serious error as to their authenticity has crept in? 
Even in such a case the veneration would not be vain, as a relic 
is not honored absolutely, but relatively, for the sake of the 
person to whom it belonged. Relative veneration of the saints 
extends to their relics, pictures, and statues, which are objects of 
religious honor, not for their own sake, but on account of their 
connection with certain saints. 

From what has been said, it appears that, in spite of the doubt as 
to the authenticity of this relic. Bertha may venerate it, especially 
as the veneration to be given it is private. — Dr. Franz Janis. 



XLIII. PROTESTANT BAPTISM 

Sempronia, a Protestant maid-servant, is brought to the hospital 
in a state of total unconsciousness, suffering from gas poisoning. 
Two experienced physicians examine the patient and agree in 
thinking that she will die shortly without recovering conscious- 
ness. The Protestant clergyman comes to see her and says that, 
as he can do nothing, he will not visit her again. The Catholic 
priest at the hospital learns where Sempronia was born, and re- 
members that not long ago a convert from the same town had to 
be conditionally baptized, because repeated inquiries had shown 
that the Protestant clergy in that town were often careless in the 
administration of baptism. The thought occurs to the priest that 
perhaps he ought to baptize Sempronia conditionally, doing so quite 
privately. She seems to have been in good faith regarding her 
religion, and, in case her first baptism was invalid, her eternal sal- 
vation can be secured if she has never committed any mortal sin, 
or if since her last sin she has made at least an act of imperfect 
contrition, or can make one still in a conscious moment before 
death. " Must I baptize her or not ? " This is the question that 
the Catholic priest asks himself. How ought he to decide ? 

Let us first answer the following questions : 

I. What are we to think of non-Catholic baptism in general ? 

II. Can and ought Sempronia to be baptized under the circum- 
stances stated above ? 

III. If she is baptized, what ceremonies should be observed? 

164 



PROTESTANT BAPTISM 165 

I. With regard to baptism by a non-Catholic, we must notice, 
first of all: (i) that it is undoubtedly valid, if the minister bap- 
tizes with the intention, matter, and form requisite for the validity 
of the Sacrament. De fide Cone. Trident., Sess. VIII. can. IV. 
(2) It is an absolute certainty that many non-Catholic ministers are 
by no means careful as to the intention, matter, and form, when 
they baptize, so that the validity of their baptisms is often very 
questionable. Hence the Catholic Church has repeatedly decided 
that, in the case of converts to the Catholic faith, the validity of 
their baptism, administered by a non-Catholic, must be examined 
in each individual case ; and wherever there is any reasonable doubt 
regarding it, baptism must be readministered conditionally. The 
Manuale sacrum (Rituale) of the diocese of Brixen contains the fol- 
lowing instructions : "" Baptizati igitur ah haereticis non sine dis- 
tinctione sub condifione haptizandi sunt, dum si convertiint ad religi- 
onem catholicam. Sed jiixta decisa a S. Cong. Inquis. (20 Nov., 
1878) in conversione haereticoritm, qnocunque loco vcl a quacunque 
secffi, venerint, inquirendum de validitate Baptismi in haeresi suscepti 
, . . Si autem pro temporum ant locorum ratione, investigatione pe- 
racta, nihil pro validitate detegatur, aut adhuc probabile diibium de- 
baptisnii validitate supersit, sub conditione secreto baptisentiir." 
Ibid. p. 20, 3. Lehmkuhl remarks with regard to this investigation 
(P. II. nota B, ad num. 19) : " Verissime dicitur, in singulis casibus 
diligenti examine inquirendum esse, num servata fucrit debita ma- 
teria et forma. Verum non mca tanNtni sentenfia, \sed ipsius S. Cong. 
de Propag. F. judicio illud ' diligens examen ' — intelligitiir plane, 
proiit adjuncta ferunt, atque suprema lex semper esse debet, tit 
aeterna salus hominis in tuto collocetur." 

Regarding the usual result of this investigation Konings says 
(n. 1264, III. in fine): "Examine ca, qua. fieri potest, ratione 



i66 TEE CASUIST— VOL. IV. 

peracto, plerumque dubium hodie remanebit Baptisma ab haereticis 
collatum. Quapropter universim sub conditione iteratur, non apud 
nos (in America) tantum, sed et in Anglia, Galliis, Germania, Bel- 
gio, Hollandia, et teste Perrone {Bapt., c. V. n. 133 nota) etiam 
Romae. 

It follows therefore that, in the case under discussion, it can- 
not be ascertained whether Sempronia has been validly baptized 
or not; and for this reason the Sacrament may be repeated 
conditionally. 

In answer to question II., Ought Sempronia to be baptized? we 
are of opinion that she ought to be baptized conditionally, if the 
validity of her first baptism is doubtful, and her present capacity 
and disposition for a valid and fruitful reception of the Sacrament 
are at least probable, and if she requires this aid for the good of 
her soul, and it can be given her without detriment to religion and 
the public good. 

(a) As to her capacity for a valid, and her disposition for a 
fruitful, reception of holy baptism, theologians are unanimous in 
requiring of adults at least an habitual intention (in order to render 
the Sacrament valid) and faith, hope, and the beginning of charity 
(in order to render its reception efficacious), with at least imperfect 
contrition for personal sins committed. 

These requirements must be considered in detail : 

(i) On the subject of the intention requisite in the recipient 
of the Sacraments, Lehmkuhl remarks : " Valor sacramentorum, 
quae in subjecto conficiuntur, eatenus pendet ab homine suscipiente, 
ut requiratur susceptio, quae did possit voluntaria. Haec voluntas 
in homine adulto i. e. ratione utente, personalis adesse debet; in iis 
vero, qui ad usum rationis nunquam pervenerant, sufficit voluntas 
ministri, qua nomine Christi et Ecclesi.ae agit" (P. II. n. 47). — 



PROTESTANT BAPTISM 167 

"Ratio est (scribit Marca, n. 1434), quia Dens in praesenti sua 
rerum providentia non vult adtiltos justificari aut sanctificari sine 
ipsorum vohmtate et consensu." — " Justificatio fit per "joluntariam 
susceptionem gratiae et donorum" {Cone. Trid., Sess. VI. cap. 7). 

The intention differs, however, in the different Sacraments. For 
the vaHd reception of baptism, it must be at least habitual, i. e., 
there must be an act of the wilt tending towards the reception of 
baptism, and the recipient must not expressly have recalled this 
intention, although the act of will no longer exists. The reason 
why the interpretative intention is insufficient in this case is that it 
would be unfair to impose upon an adult the obligations which he 
incurs by baptism, without his express consent. 

Several theologians think that supernatural attrition constitutes 
an intention sufficient for the valid reception of baptism, because 
contrition, coupled with a resolution to do all that is essential to 
salvation, includes the reception of baptism. Although the correct- 
ness of this view is by no means certain, it possesses enough 
probability to justify in case of necessity the administration of this 
Sacrament to a dying person. — Cf. St Alph., Theolog. moral, 
1. VI. n. 82; Lehmkuhl, P. II. n. 48, a 77 (2). 

(2) Sempronia has given evidence of possessing this intention, 
for, to the best of her knowledge, she has led a Christian life and 
has shown that she desires to live and die as a baptized Christian, 
finding her eternal salvation through baptism and the Christian 
life. How could her reception of baptism fail to be voluntary? 
Quomodo susceptio Sacramenti non sit talis, quae dici possit voliin- 
tariaf She had not merely the desire to take upon herself the 
duties of a Christian, but for years she has conscientiously fulfilled 
them, as she knew them. If a marriage, invalidated because 
only one party to it really gave the required consent, whilst 



i68 TEE CASUIST— VOL. IV, 

the other dissembled and merely feigned to give consent, is subse- 
quently to be validated {juxta sent, communem et veriorem, S. 
Alph. 1. VI. n. 1 1 14) there is no need for the innocent party to 
renew the consent, because it continues to be revealed by living with 
the other. Just as here the intentio matrimonii virtually continues, 
so in Sempronia's case does the intentio baptismi continue habitu- 
ally. If the one is enough to secure the validity of marriage, why 
should not the other suffice for baptism ? 

If one who through want of intention receives the Sacrament 
invalidly, Pope Innocent III says : " Ille vera qui nunquam con- 
sentit, sed potius contradicit, nee rem nee characterem suscipit Sac- 
ramenti" (Marc. 1434). It cannot be maintained of Sempronia 
quod nunquam consentit, sed potius contradicit. " But," some one 
may say, " if she were fully conscious, she would most likely object 
to the repetition of baptism by a Catholic priest." This supposition 
does not, however, exclude the intention required for a valid re- 
ception of the Sacrament, for she is baptized, not on the ground 
of any consent that she might give if she were conscious, but on 
that of her habitual intention, which we may fairly assume her to 
have formed unconditionally and never to have recalled. 

Another objection which might be raised is this: St. Alphonsus 
teaches that, in dealing with a heretic who does not usually ask 
for sacramental absolution, we must not infer, because he displays 
some signs of contrition, that he has any intention to make a con- 
fession, and he cannot be given conditional absolution when he is 
in danger of death (1. VI. n. 483). Our answer to this objection 
is that the Saint is speaking of heretics who " a confessione siim- 
mopere abhorrent, — atqui Sempronia ,a Baptismate non abhorref, 
sed potius vidt illud, ergo . . ." The case would be different if 
she had expressly formed, and never withdrawn, a resolution never 



PROTESTANT BAPTISM 169 

to accept the help of a Catholic priest. As, however, there is no evi- 
dence of such a resolution, we infer, from all that is reported of 
Sempronia, that there were good reasons for believing her to possess 
the intention necessary to a valid reception of baptism, and that she 
was a subjectum capax of this Sacrament. 

(3) But does she possess the dispositions requisite for a fruitful 
reception of baptism? 

This is a point that must certainly be taken into consideration, 
for, if we were sure that the baptismal grace could have no effect 
in Sempronia, because of her defective dispositions, the Sacrament 
could not be administered, as it would be useless and futile. On 
the subject of the dispositions required for baptism, St. Thomas 
writes (in IV. dist. 6, q. i, a. 3, ad 5^™) : "Ad hoc quod homo se 
praeparet ad gratiam in baptismo percipiendam, praeexigitur {in 
adtdtis) fides, sed nan charitas, quia sufficit attritio praeccdens, 
etsi non sit contritio." There is no mention here of hope and rudi- 
mentary love {amor iniiialis), which, with faith, are the disposi- 
tions necessary to justification {Trid., Sess. VI. cap. 6), because the 
attrition mentioned comprises both. In practise, a man who knows 
and believes the truths necessary to salvation (necessaria de necessi- 
tate medii) generally possesses contrition as well as faith. (Cf. S. 
Alph., Theol. mor., 1. II. n. 8, and especially Horn. Apost., T. IV. 
n. 13.) 

If therefore the person receiving baptism has ever made these 
acts of virtue, and has not nullified them by contrary acts, or made 
his act of contrition void by subsequent mortal sin, he no sooner is 
baptized than the grace given by the Sacrament begins to have its 
effects ; otherwise it remains latent until the recipient, by an act 
of at least imperfect contrition, calls it into activity. (Cf. S. Alph., 
Theol. mor., I. VI. n. 87, a 139.) If Sempronia was in good faith 



lyo 



TEE CASUIST— VOL. IV. 



as a Protestant, we may fairly assume that she practised these 
virtues, and that on her part there was nothing to stand in the 
way of the conditional repetition of her baptism. 

(b) We have, finally, to consider Sempronia's spiritual needs, 
and the possible hindrances of a higher nature, which may prevent 
any attempt to help her. 

(i) There is no urgent reason for thinking that Sempronia is 
in a state of mortal sin, and therefore, in her unconscious condition, 
in extrema necessitate spirituali, " iit periculum damnationis ita 
tmmineat, ut moraliter loqiiendo sine alterius auxilio illiid evadere 
lion possit" (Miiller, 1. II. § 57, n. 8), yet, as she is now abso- 
lutely helpless, there is certainly some reason to fear for her eternal 
salvation. 

Sacramenta sunt propter homines; and a Catholic priest can 
easily, and probably successfully, come to the aid of this wandering 
sheep in great, possibly extreme, danger of eternal damnation. In- 
deed, it would be difficult to find good grounds for not even think- 
ing him bound to perform this charitable work, belonging to his 
official duty. 

(2) Among non-Catholics it may happen, under similar circum- 
stances, that baptism cannot be administered without giving rise 
to public scandal, and to serious danger to either the Catholic 
religion or the spiritual welfare of the faithful. In such a case, as 
Konings rightly remarks (n. 1261), the good of the individual must 
not take precedence : " bonum enini commune praeferendum est 
privato." There cannot, however, be any danger in connection with 
the baptism of Sempronia. Her burial as a Protestant, if she 
really dies, cannot be prevented, but it will cause no scandal, for 
her baptism will be absolutely private. She may recover her 
health, and continue to be a Protestant, but this possibility can no 



PROTESTANT BAPTISM 1 7 1 

more be an obstacle to her baptism than it would be to that of a 
child of non-Catholic parents, of whom, if in danger of death, 
St. Alphonsus says : " Cerium est, posse et dehere haptisari prolem 
(invitis parentibus) , si ipsa sit in periculo mortis. Ita communiter, 
etc." (1, VI. n. 129). We may also quote Lehmkuhl (P. II. 
n. 84) : " In Ordinariis Ecclesia solet, nisi periculum mortis adsit, 
exspectare consensiim alterutrius parentis, atque probabilem spem 
catholicae edticationis." 

(3) Some one may say: "If Sempronia ought to be baptized, 
then every non-Catholic who is in danger of death and has lost 
consciousness ought to be baptized or absolved conditionally; but 
this is quite contrary to the practice of the Church." In reply we 
may argue that the reasons and circumstances which have been 
brought forward in favor of Sempronia's conditional baptism do 
not exist in the case of every non-Catholic. Where they do exist, 
the rule, which we quote from Lehmkuhl (P. II. n. 78, not. 2), 
is certainly not opposed to the practice of the Church: " Qiiando 
igitiir secundum doctrinam complurium scriptorum homo sensibits 
destitutiis baptisari potest, nan est ratio, cur non fiat, inio charitas 
videtnr ad id impellere." 

We can now arrive at the following conclusion from the an- 
swers to questions I and II : 

As the validity of Sempronia's first baptism is doubtful, and 
her present capacity and disposition for baptism are probable; as, 
moreover, her spiritual state seems to require this assistance and 
there is no just obstacle to its administration, she can and may 
be conditionally baptized ; and it is surely an act of Christian 
charity showing true zeal for souls, if the Catholic priest baptizes 
her conditionally: si non es baptizata et si capax es, ego te baptizo, 
etc. It would be a mistake to insert the condition " si disposita es," 



172 TEE CASUIST— VOL. IV. 

for this intention on the part of the priest would render the Sacra- 
ment null and void if the disposition only developed later, 
and it would quite frustrate the object of the Sacrament in this 
case. 

If there was any positive reason to suppose that Sempronia 
desired sacramental absolution, she ought to be absolved condi- 
tionally {si capax es) after her baptism. If time and opportunity 
permit, the Bishop's authorization must be asked for absolving a 
person from heresy, since the case belongs to the forum externum 
Episcopi. 

In the same way some positive ground would have to be present, 
to justify our assuming in Protestants any desire to receive 
Extreme Unction. 

Ill, What ceremonies ought to be used in administering bap- 
tism to Sempronia ? 

It is a private baptism to one in extremis; hence no godparents 
are needed: "licet non necessario sit adhibendus patrinus in bap- 
tismo privato, tamen bene (idhiberi potest, et praestantius adhibe- 
tur" (St. Alph., Theol. mor., 1. VI. n. 147, praenot. II.). 

With regard to the actual baptism the S. Rit. Cong., on Sep- 
tember 23, 1820, issued the following regulations for private 
baptism of persons in extremis: 

(i) All that in the Rituale precedes the actual baptism may be 
omitted, and the person be at once baptized in the ordinary way : 
ter infundens aquam super caput ejus in modum Crucis dicens.i 
ego te baptiso, etc. 

(2) If the priest has no baptismal water at hand, and there is 
danger in delay, he may use ordinary natural water. 

(3) After the baptism, he is to anoint the person on the brow 
with chrism, if he has any with him, and is to say meanwhile the 
words prescribed in the Rituale: Dens omnipotens, etc. 



PROTESTANT BAPTISM 173 

(4) He is to give the white cloth and the Hghted taper with 
the usual words. 

(5) If the person recovers health, the omitted ceremonies, that 
ought to precede baptism, are to be performed in the church: 
" sed nunquam extra Ecclesiam supplendae sunt ceremoniae omis- 
sae," as de Herdt says {S. Lit. prax. de Bapt., n. 6). 

(6) All these regulations hold good, and are to be observed as 
far as possible, in the conditional baptism of a non-Catholic, as 
Konings has shown (n. 1264, I. and VL). — Johann Schwien- 
bacher, C.SS.R. 



XLIV. THE SENSE OF THE WORDS "PURE 
VIRGIN" IN THE CONSTITUTION OF A RE- 
LIGIOUS ORDER 

Miss X. applies to the superior of a convent for admission. The 
superior answers that she may come, but only on condition that 
she is a pure virgin. X. goes to her confessor, and tells him 
that she was once so unhappy as to be seduced, but the sinful act 
had no results, and she repented of it and confessed it long ago. 
She asks anxiously whether she can describe herself as a pure 
virgin. 

It can scarcely be doubted that the constitutions, to which the 
superior referred, meant, by the words " a pure virgin," to desig- 
nate one who is pure in the ordinary acceptation of the word, and 
in the eyes of her fellow creatures — only those who had " fallen " 
were to be excluded from admission. It is possible, and is said to 
have actually happened, that a superior, misunderstanding the text 
of the rules, has meant really vera virginitas coram Deo, and in 
this way has made the mistake of making admission depend upon 
a condition not based upon the rules. In this case X. can with a 
clear conscience call herself a pure virgin, for she is such, accord- 
ing to the constitutions to which the superior has referred. The 
mistake is on the part of the superior, whose wrongly imposed 
condition must be regarded as non a.djecta (cf. Gury, 795 nota). 
How would matters stand, however, if the rule really required 
virginity in the eyes of God, and absolute innocence of at least any 
outwardly dishonorable action? 

174 



SENSE OF WORDS "PURE VIRGIN " 175 

We can safely assume that the rule of no religious order of 
women would receive the approval of a Bishop, and still less of 
a Pope, if this interpretation were to be placed upon it, as such 
a point would inevitably give rise to many embarrassments and 
scruples. We can hardly be wrong in believing that the ecclesi- 
astical authorities would not be justified in attaching such a con- 
dition to the admission of postulants, for it would be injurious to 
the community life, and a morally impossible condition. 

In an analogous case, St. Alphonsus writes: Dicunt auctores, 
quod sponsa ah alio corrupta, etiamsi interrogetur a sponso, an 
fuerit ah alio cognita, poterit dissimulare et negare per restrictionem 
non pure ftventalem, respondendo non esse corruptam, suhintelUgens 
in communi aestimatione (1. vi. 865). X's confessor may set her 
mind completely at rest. — Georg Freund, C.SS.R. 



XLV. MATRIMONIAL CONSENT 

Lucillus and Agnes were married, but the priest, of very old 
age, accidentally omitted the portion of the ceremony in which 
the essential "Yes" should have been spoken. 

Some time afterwards they quarreled, and Lucillus said to 
Agnes : " Pack up and be off, you are not my wife." Agnes 
was astonished, not knowing what he meant, until he explained 
to her what had happened. The witnesses to the marriage were 
still alive, and remembered the occurrence; they had noticed it 
at the time, but thought it only a matter of form, and said noth- 
ing, lest they should do mischief. The business was referred 
to a higher authority. 

The marriage was recognized as valid, both by the Church 
and the state. The Bishop's answer ran as follows : " The couple 
evidently approached the altar with the intention of being mar- 
ried, and with the same intention they clasped each other by the 
hand, gave the rings to be blessed and exchanged them in token 
of their troth that they had pledged, and they signed the mar- 
riage contract; all this took place in the presence of the parish 
priest and two witnesses." 

While no one is bound to regard this decision as correct, it 
is a fact that in some oriental rites the bridal couple say nothing 
actually expressive of the conclusion of the marriage, which is 
externally manifested by the clasping of their hands and other 
ceremonies, often very solemn. 

In cases where there is doubt regarding the validity of a mar- 
176 



MA TRIMONIAL CONSENT 1 77 

riag-e that has already taken place, Rome gives no absolute de- 
cision, unless the matter is perfectly clear, but in practise she 
upholds the marriage as far as possible, for "Actus rite f actus 
praesumitur." 

In the present case, if the answer " Non constare de nullitate " 
had been received from Rome, the couple would have had to 
acquiesce in their marriage, at least if it had been consummated, 
they could not contract other marriage. They would have had 
to refrain altogether from marriage, nam obstat impedimentum 
ligaminis probabiliter existens; cum tanto periculo nullitatis an- 
other marriage could not take place. — Honorius Rett, O.F.M. 



XLVI. DEPOSITIONS OF WITNESSES TO A WILL 

Peter bequeathed all his property to Paul, and gave him his will 
to take care of. In the course of the night in which Peter died, 
Paul's house was burnt down and the will was destroyed. Peter's 
natural heirs then took proceedings to get possession of what he 
had left, in spite of the assertion of a witness (whom they acknowl- 
edged to be very trustworthy) that he had read Peter's will and 
had seen that Paul was appointed sole legatee, except a few be- 
quests ad pias causas. 

What ought the natural heirs to do quoad justitiamf and how 
should they be treated in the confessional? 

Anszver. — There is no doubt at all about the case as far as the 
civil law goes, which prescribes : " In default of a valid declaration 
of the last will, the whole of the deceased's property passes to the 
legal heirs," 

A valid verbal declaration did not exist in this case, and the 
written document had perished, ergo Paul had legally no claim at 
all upon the inheritance. The existence of one witness is absolutely 
insufficient for contesting the will in Paul's favor. According to 
Canon Law, and therefore also according to Catholic theology, one 
witness, however trustworthy he may be, is not enough (St. Alphon- 
sus Liguori, Laymann, Holzmann, Lacroix, Viva, Noldin, etc.) to 
constitute any obligation quoad justitiam, regarding a lost will, or 
one that never was drawn up. The heirs are therefore not in the 
least bound, pro foro conscientiae, to give Paul a farthing. 

We must regard the bequests quoad pias dispositiones rather dif- 
178 



WITNESSES TO A WILL 179 

ferently. Writers on Moral Theology teach almost unanimously 
that the heirs are bound in conscience to pay bequests for pious pur- 
poses, even although they may not have been included in a will, 
provided there is evidence that the deceased desired money to be 
applied to such purposes. Two witnesses suffice to impose an obli- 
gation pro foro conscientiae. 

Of course the natural heirs are not required to search for wit- 
nesses, or to try to find out whether the testator expressed no wish 
that some of his property should be applied ad causas pias. But 
in this case the knowledge of Paul's statement and of that of the 
other trustworthy witness regarding the bequests ad causas pias 
contained in the lost will is enough to impose upon the heirs the 
ohligatio haec legata solvendi pro foro conscientiae. 

A confessor should be particularly warned, in a case of this sort, 
to leave the heirs in bona fide, if in bona fide they pay nothing, and 
he foresees that no admonition on the subject would have any good 
result. Delama says : " Confessarius habifa ratione ignorantiae 
fidelium, qui saepius aegre sibi suadent, praefatam assertionem 
veram esse, plerumque illos in bona fide relinquere debet, et hoc 
juxta commiinem doctrinam quoad opportnnitatem monendi, vel 
non monendi poenitentes, qui sunt in bona fide circa aliquam justitiae 
obligationem. Quodsi confessarius interrogetur respondebit." ^ 

I should like to add to the last sentence: There is no dubium 
prudens regarding the existence of the will. Therefore a confessor 
might advise the heirs in a friendly way to give Paul something, 
but they cannot by any means be considered bound to do so. — Prof. 
Gspann. 

* Cf. Gury, n. 818 (Ed. roma. P. Ballerini proctirata); Delama, Dionysius, Trac- 
tatus dejustitia etjure, Trent, 1881, p. 71, n. 96. 



XLVII. MISTAKEN ADHERENCE TO THE RULE 
AN OBSTACLE TO DAILY COMMUNION IN 
CONVENTS 

There are still here and there communities of women who are 
deprived of the precious boon of daily Communion, granted and 
earnestly recommended by the Holy Father, the head of all religious 
orders upon earth. This deprivation is due to their immediate 
superior, who considers daily Communion to be incompatible with 
the routine imposed by rules and customs. 

Question. — Who has power to remedy this evil? 

In such cases it is the duty of the Head of the Order and of the 
confessor to overcome the prejudices of the responsible persons, by 
explaining the papal decree of December 20, 1905, and seeing that 
it is fully carried out. In this way the religious will be enabled to 
enjoy their privileges. The following points especially must be 
kept in view : 

( I ) Although the confessor should not interfere in the domestic 
arrangements of the house, it is his duty to discharge the munus 
confessarii docendi et manendi, not only in the case of the subordi- 
nate Sisters, but also emphatically in that of the local Superior 
and her advisers. In publishing the decree, the Holy Father 
paid particular attention to religious communities, including those of 
women, as appears clearly from sections 7 and 8, where it is laid 
down that " freedom of access to the Eucharistic table, whether 

i8o 



MISTAKEN ADHERENCE TO THE RULE i8i 

frequently or daily, must always be allowed them . . . and in order 
that all religious of both sexes may clearly understand the pro- 
visions of this decree, the Superior of each house is to see that it 
is read in community, in the vernacular, every year within the 
octave of the Feast of Corpus Christi." 

Members of religious Orders, above all other Christians, are bound 
to obey the Holy Father's instructions, for he is the head of all 
Orders, it is to him that they have taken a vow of obedience, and 
so they are pledged to obey him, although not always ex fonnali 
ohedientia voti, yet at least from the virtue of monastic obedience. 
The confessor ought to admonish the local superior not merely 
to inculcate obedience in words and to require it for her own regu- 
lations, but also to encourage her subjects to render it most zealously 
to the supreme head of all religious Orders. It is the duty of the 
confessor and of the Mother General to show how daily Communion 
can be arranged in conjunction with the Mass at which the Sisters 
assist daily, and their other spiritual exercises, so that there may 
be sufficient time for preparation and thanksgiving without altering 
the prescribed routine more than is absolutely necessary. It will 
then be the local Superior's business to announce this re-arrange- 
ment of the day's duties to the community, and to see that it is 
carried into effect. 

(2) The confessor ought to adhere closely to the decree in deal- 
ing with the individual religious in confession. In section 5 it is 
stated : " That the practise of frequent and daily Communion may 
be carried out with greater prudence and more abundant merit, 
the confessor's advice should be asked." This shows plainly that the 
penitent, if of the requisite dispositions, i. e. if in a state of grace 
and of right and pious intention, does not need a positive permission 
on the part of his confessor to communicate daily, since it is be- 



i82 TEE CASUIST— VOL. IV. 

stowed by the Holy Father himself; but the penitent will do 
well to act on the confessor's advice. With a religious a 
confessor should also regard himself as a counselor, not as one 
empowered to command, provided the penitent has the right 
dispositions. 

(3) He must beware of forbidding a religious in these disposi- 
tions to receive Communion daily, for the decree says explicitly 
in section i : " No one who is in the state of grace, and who ap- 
proaches the holy table with a right and devout intention, can 
lawfully be hindered therefrom." And in section 5 : " Confessors 
are to be careful not to dissuade any one from frequent and daily 
Communion, provided that he is in a state of grace and approaches 
with a right intention." 

In his dissertation on " Frequent and daily Communion," Father 
Haettenschwiller, SJ., remarks : " It would be a mistake on the 
part of a confessor to a community of women, since the publication 
of the decree, if he were to say : * Hitherto you have gone to Com- 
munion four times each week; in future you may go every day 
except on the day appointed for your confession.' " 

In the same work it is declared as quite contrary to the spirit of 
the Church, for postulants and novices, who perhaps communicated 
daily as long as they were in the world, to be forbidden to do so 
in the convent, simply to make a difference between them and pro- 
fessed nuns. It would also be a mistake to debar any one from Holy 
Communion as a punishment for some fault, and a still greater 
mistake for the Superior to do this. According to the decree 
" Quemadmodum" of December 17, 1890, article V, a Superior 
may forbid a subject to receive Holy Communion, not as a punish- 
ment, but to avoid scandal, if since her last confession she has 
given scandal to the community, or committed some serious and 



MISTAKEN ADHERENCE TO THE RULE 183 

notorious offense; but the prohibition can last only until she has 
again been to confession. 

These are a few suggestions that may be of use in removing 
the alleged obstacles to frequent and daily Communion in com- 
munities of women. — ^Johann Schwienbacher, C.SS.R. 



XLVIII. EXTREME UNCTION IN CASU 
NECESSITATIS 

A priest was administering Extreme Unction to a dying person, 
who seemed to be on the point of breathing his last just before 
being anointed, for which reason the priest hastily anointed him 
on the brow, saying: Per istam sanctam unctionem indulgeat tibi 
Deus, qitidquid deliquisti. The sick man did not, however, die 
just then. Ought the priest to anoint the man's eyes, ears, etc., and 
use the formula of words proper to each application of the holy oil ? 
or may he allow the one application to the brow to suffice? 

Answer. — In the first place the wording of the formula needs cor- 
rection. The priest ought to have said Dominus instead of Deus, 
and to have added Amen; although the valor sacramenti was not 
imperiled by the alteration. As to the validty of one single appli- 
cation of the holy oil, we may quote a rescript issued by the Holy 
office on April 25, 1906 : " Cum huic supremae Congregationi 
quaesitum fuerit, ut unica deferminaretur formula hrevis in ad- 
ministratione sacramenti Extremae Unctionis in casu mortis im- 
minentis, E^^ decreverunt. In casu vercs necessitatis sufficere 
formam: Per istam sanctam unctionem indulgeat tibi Dominus, 
quidquid deliquisti. Amen." On the following day, April 26, 
this decree received the Pope's sanction. Formally the decision 
refers only to the forma sacramentalis, but indirectly it affects 
also the materia (proxima) sacramentalis, as the materia et 
forma sacramentalis make one inseparable sign. If, then, one 
single sacramental form, in the words prescribed, suffices, it fol- 
lows plainly that one single sacramental materia proxima (anoint- 

184 



EXTREME UNCTION IN CASU NECESSITATIS 185 

ing on the brow) also suffices. As, moreover, the decree simply 
says " siifficere," it is not permissible to question the validity of 
the one anointing, and the anointing must be performed absolute, 
not sub conditione, for Extreme Unction can be administered con- 
ditionally only when there is a doubt as to the validity of the 
Sacrament. If the one anointing on the brow, given absolute, has 
already constituted a valid administration of the Sacrament, the 
anointing of the eyes, ears, etc. cannot be performed even con- 
ditionally, and the priest can only supply the omitted prayers and 
ceremonies. 

This is the opinion of almost all the important modern authori- 
ties. Lehmkuhl says (Theol. mor., Ed. 11, Vol. II. n. 718): 
" Certo unctio unica valida est, v. g. in fronte, si cum ea forma 
generalis adhibetur. Ita nunc indubie constat ex decreto S. 
Officii d.d. 2^ (26) Apr. ipoS, quod formaliter quidem de abbre- 
viata forma, implicite etiam de unctione unica deccrnit." The 
same writer uses similar language in his Casus conscientiae (Ed. 3, 
Vol. II. n. 671): " Erant qui dubitareni de valore iinctionis ut- 
cunque abbreviatae nisi sub suis formis singuli sensus singillata- 
tim ungerentur . . . Verum omnis dubitandi ratio sublata est 
per decretum S. Officii d.d. 2^ Apr. ipo6." In n. 673 there is an- 
other quite consistent remark on the question of conditionally com- 
pleting the anointing of the various sense organs : " De valore 
huius modi collationis dubitari amplius non potest . . . neque 
amplius locus est quidquam repetendi vcl supplendi, si quando 
moribundus vitam diutius trahat." Lehmkuhl expresses the same 
opinion with equal assurance in his Compendium theol. mor., n. 
938, ed. 5. The same view is taken in Miiller-Schmuckenschlager's 
Moralthcologie, ed. 7, III, Supplement, p. 24: " Haec forma in 
necessitate adhibita juxta plures non est iteranda, ne quidem sub 



i86 TEE CASUIST— VOL. IV. 

conditione. Nam dubium probabile circa valorem non adest, et 
extra dubii hypothesim non debet nee potest ritus sacramentalis 
deniio adhiberi. (Vide Collationes Brugenses, febr. 1907) Quodsi 
ergo moribundus respiret, suppleantur suo ordine orationes prater- 
missae, juxta praescriptionem Rif. Rom., t. V. i, n. 10." 

A similar statement occurs in Schiich-Polz's Pastoraltheologie, 
Ed, 15 : "A priest is under no obligation to employ the full form 
and matter under the condition 'si non es unctus' even if the 
sick person should live some considerable time. A conditional repe- 
tition of the Sacrament is unnecessary, because all has been done 
that St. James prescribes in his epistle, and that the Council of 
Trent requires in consequence. The prayers omitted may be fin- 
ished in the sickroom, first those which precede the anointing, and 
then those which follow it. When contagious diseases are preva- 
lent, the prayers before the anointing may be said by the priest 
in the church, before he goes to the sick man, and those after it 
likewise in the church on his return. If there is danger in delay, 
all the prayers may be said in the church after his return (de Herdt, 
p. 6, n. 207)." 

Finally we may refer to Gopfert (Moraltheologie, Ed. 6, III. n. 
197) and to Noldin (de sacram., Ed. 8, n. 452), where the same 
opinion is expressed. 

Relying on these internal reasons and also on the external au- 
thority of such eminent men, we may safely state the following 
opinion : " There is no obligation, when the forma abbreviata in 
casu verae necessitatis has been used, to complete the anointing even 
sub conditione. It is enough simply to finish the prayers and 
ceremonies." 

Although there is no obligation to finish anointing the eyes, ears, 
etc. (sub conditione) , yet there is no proof that it would be wrong 



EXTREME UNCTION IN CASU NECESSITATIS i87 

to do so; in fact, other authors maintain that it should be done. 
The editors of the Acta S. Sedis (Vol. 39, fasc. 7) remark with 
regard to the decree of the Holy Office published in that volume : 
" If the immediate danger passes over, and especially should it be 
uncertain whether the sick man can receive the other Sacraments, 
all the anointings should be repeated sub conditione, with the proper 
form of words in each case, and all the prayers previously omitted 
should be said (according to the Rituale)." We should point out 
that this is nothing but the private opinion of the editors, not an 
official statement on the part of the Holy Office. We are aware that 
the opinion " licet repetere " is held by eminent professors in Bel- 
gium, and that in recent editions of the diocesan Ritualia this condi- 
tional repetitio per longiorem formam is given. In fact, where the 
Bishops state their adoption of this opinion in some official publica- 
tion the parochial clergy are practically bound to adhere to this 
practice, as it has official sanction; they must, namely, use the 
forma abbreviata sub conditione and later anoint the various organs 
of the senses, also sub conditione. 

To sum up, therefore, the following answer may be given to the 
question submitted: (i) Taking into consideration the internal 
reasons and the external authority of eminent theologians, we may 
say that no obligation to finish subsequently the anointing, even 
sub conditione, can be proved to exist; from a purely theoretical 
standpoint it is hardly possible to find any good argument against 
the valor unicae unctionis; but (2) as some amount of probability 
must be conceded to the contrary opinion, it cannot be said to be 
im'ong to finish the anointing; (3) Where the diocesan rituale or 
the ecclesiastical superiors officially order such a supplementary 
anointing to be performed, it is practically obligatory. — Dr. Johann 
Gfollner. 



XLIX. RELEASE FROM A VOW 

A woman takes a vow to enter some religious order, but after 
her admission to a convent her health breaks down, whilst she is a 
novice, and she is sent away. Is she now free from the obligation 
of her vow ? 

Hitherto the answer given by casuists to this question was in the 
negative (cf. E. Miiller, Theologiamoralis, Ejd. 9, 11. p. 192, casus i ; 
Gopfert, Morultheologie, Ed. 6, I. p. 479, etc. ; Lehmkuhl, Theologia 
mor., Ed. 11, I. p. 333 ; Noldin, de praeceptis Dei et ecclesiae, Ed. 8, 
p. 239), but it has recently been reversed by a decree of the Congre- 
gation de Religiosis dated September 7, 1909, affecting all religious 
orders of men {Acta Aposf. Sedis, 1909, no, 17, p. 700, etc.), and 
extended to orders of women on Jan. 4, 1910 {Acta Apost. Sedis, 
1910, no. 2, p. 6T), etc.). 

The Congregation decided as follows : " No one who has been 
dismissed from a religious community for any reason whatever 
can be admitted to the novitiate or to profession, under penalty of 
invalidating the latter . . . Novices and religious cannot in future 
be admitted to the same order or congregation or province." No 
one can be required to ask a dispensation from what would be a 
special favor to the applicant and a violation of the law. Therefore 
the vow is no longer binding, for it cannot be kept without having 
recourse to extraordinary means, which cannot be obligatory. (The 
case would be different if a pledge to have recourse to such extra- 
ordinary means had been expressly included in the vow.) This 
conclusion would hold good whether the person who took the vow 
had intentionally or unintentionally brought about her dismissal. — 
Dr. Karl Fruhstorfer. 



L. THE CONDITIONS FOR GAINING AN 
INDULGENCE 

Mother Pia, an Ursuline who has taken solemn vows, when wish- 
ing to gain plenary indulgences, makes the visits of a church, as is 
required, but in order to save time she says no prayers, but part of 
her appointed office (officium parvum B. M. Vij'g.). 

Question. — Is this enough to gain the plenary indulgence? 

The good works prescribed for those endeavoring to gain a plen- 
ary indulgence are usually Confession, Communion, visit to a 
church, and prayer for the Holy Father's intention. The first point 
to decide is whether prayers that one is already bound to say suffice 
for this purpose. The unanimous answer is that they do not : 
" nee snfficit, nisi id expresse concedatur, praestare opera jam ali- 
unde dehita, ut sunt v. g. jejuniiim quadragesimale, recitare Brevi- 
arium, etc." Marc. 1730 (5) with reference to Deer, auth., n. 
291 (2). 

Beringer writes in the same way {Die Abldsse, i, Part X. p. 80, 
etc.) : "A work which one is already for other reasons bound to 
perform cannot serve to gain an indulgence, unless the Pope has 
given permission for it to serve, either when granting the indulgence 
or in some special decree. It is impossible for one action to satisfy 
two obligations, each of which requires the performance of this ac- 
tion. . . . Therefore, failing any special indult, fasting on the forty 
days of Lent, or on Ember days, or vigils, cannot take the place of 
a fast ordered as a condition for gaining an indulgence. In the 
same way, according to an answer given by the S. Congregation 

189 



190 THE CASUIST— VOL. IV, 

of Indulgences, on May 29, 1841, a priest cannot for gaining an 
indulgence says his Office instead of the prayers prescribed by the 
Pope." 

The question whether the visit to a church on Sundays and 
holidays, for the purpose of hearing Mass, suffices to gain the in- 
dulgence, is answered by some authors affirmatively and by others 
negatively. The latter give as their reason the fact that to visit a 
church and to hear Mass are two different things. Beringer ad- 
vises those who cannot easily pay a second visit to the church, to 
come early to Mass or to stay after it is over, so as to make the visit 
and say the required prayers. 

With regard to the penance imposed in confession, according to 
papal rescript of June 14, 1901, any indulgences attached to it 
may be gained; but from the question which elicited the above- 
mentioned decision, it does not appear that the performance of the 
penance can take the place of the prayer to be said during the 
visit to the church, as a condition to gaining a plenary indulgence 
(Acta S. Sedis, tom. XXXIV. p. 125), unless the confessor, who 
can impose opera aliter debita by way of penance (S. Alph., 1. VI. 
513), should allow it. 

After these general remarks we may answer the question of 
Mother Pia. In the cases to which we have referred the works 
have been opera stride, i. e. sub peccato debita. As to the prayers 
imposed on religious by their Rule, in most cases they do not bind 
under sin, although, as theologians show, any avoidable omission 
of them per accidens is generally not free from venial sin. There- 
fore Beringer writes : " As in religious communities the Rule is 
generally not binding under sin, the prayers and pious practices, 
enjoined by the Rule, can serve to gain the indulgences which 
are attached to such works of piety." The Office which Mother 



THE CONDITIONS FOR GAINING AN INDULGENCE 191 

Pia has to say daily belongs to the class of prayers prescribed by 
the Rule, for the strict duty binding certain religious of both sexes 
to the daily recitation of the Divine Office sub gravi is not appli- 
cable to her, for although she has made solemn vows, her order 
was not intended to say the Divine Office in choir. " O nines religi- 
osi (solemniter) professi ad chorum destinati utriusque sexus ob- 
ligantur ad horas " (S. Alph., 1, IV. 141). Therefore Mother Pia's 
practise cannot be blamed nor pronounced insufficient to gain 
plenary indulgences. — Johann Schwienbacher, C.SS.R. 



LI. IS IT NECESSARY TO BE IN THE STATE OF 
GRACE IN ORDER TO GAIN INDULGENCES FOR 
THE SOULS IN PURGATORY? 

Quite recently two prominent writers on dogma, Christian 
Pesch (Praelectiones dogmaticae, Ed. 3, torn. VII. p. 248) and 
De Augustinis {De re sacram., torn. II. 339) have favored a view 
held by the great Jesuit writers Suarez {Disp. 53, sect. 4, n. 6) 
and Bellarmine {de indulgentiis, I i, c. 14), to the effect that both 
plenary and partial indulgences can be gained on behalf of the 
dead even by one who is not in the state of grace. Naturally those 
indulgences are excepted for gaining which confessio or contritio 
is required by the Church as a sine qua non. 

The advocates of this theory argue as follows: Although the 
guilt of sin and its eternal punishment are remitted, a Christian 
does not by any means always escape its temporal punishment 
{Trid. sess. VI. can. 30, in Densinger-Banmvart, n. 840). Peccar 
turn is the causa efficiens of poenae temporales. Hence it is abso- 
lutely necessary for the homo in statu viae to be free from grievous 
sin, before he can attempt to avert poenae temporales by doing 
good works and gaining indulgences. If an indulgence is gained 
for the souls in purgatory, he who receives it is already in statu 
gratiae sanctificantis; that is certain. Ergo, the person gaining it 
need not be in the state of grace ; it is only necessary for him to 
do the required good works. 

Pesch sums up the argument more briefly : " Status gratiae non 
requiritur ut causa indulgentiae, sed ut dispositio ad eius ejfectum 
recipiendum. Ergo si effectus recipitur a defuncto, non reqiiiritur 

192 



STATE OF GRACE TO GAIN INDULGENCES FOR SOULS 193 

status gratiae in vivente, qui implet conditiones." He even asserts 
in contradiction to Pohle: " multi theologi putant, etiani peccfi- 
torem lucrari posse indulgentiam pro defunctis." 

Dr. Josef Pohle {Lehrhuch der Dogmatik, III. 522) is altogether 
opposed to this theory. Pohle argues that indulgences can only 
indirectly benefit the dead, and that the Church does not directly 
apply them to the poor souls through the agency of the living. 

He is no doubt correct in this statement, but, on the other hand, 
it is equally correct to believe that all indulgences capable of being 
applied to the dead can be applied to particular souls. Although 
the application is per modum suffragii, and we cannot know 
whether the indulgence gained is applied to that particular soul, 
or applied in its full extent, an indulgence infallibly has some 
result, and has it in the case under discussion, because the status 
gratiae is present in all holy souls, as a dispositio ad effectum 
recipiendum. 

It has been always the custom of the Church to apply the 
fructus medius of the Mass and satisfactory works and indul- 
gences to particular souls, and this justifies us in assuming that 
the ,anima determinata infallibly receives each time some part, 
though perhaps a small one, of the opus satis factorium applied to 
it. With regard to the effectus satisf actor ius it is, according to 
Suarez {de euch. disp. 79, sect. 10, n. 3 sqq.), a sententia communis, 
that Masses for the dead infallibly secure the remission, ex opere 
operato, if not of the whole punishment due to it, at least of some 
part of it (Pohle, p. 380). 

Taking all these considerations into account, we may safely 
regard the theory that persons in mortal sin can gain partial and 
plenary indulgences for the dead as thoroughly reasonable. — Dr. 
Gspann. 



LII. HEARING CONFESSIONS IN FOREIGN 
LANGUAGES 

Titus is priest in a large industrial town where there are 
workmen of various nationalities, who often know nothing of the 
language of the country. With the help of several priests who 
understand the various languages spoken in that town, he has 
compiled a scheme of confession in several languages, so as to be 
able, in case of necessity, to hear the confessions of people speak- 
ing a language unknown to him. His confrater Commodus asks 
him : " Why give yourself so much trouble ? When they are in 
danger of death, I can validly absolve such people if they only 
give some sign of contrition; but otherwise I cannot hear con- 
fessions in a language that I do not properly understand." 

What ought we to think of the theory and practise of these two 
priests respectively? 

Commodus is wrong in fancying that danger of death is the 
only case in which a penitent, whose language the confessor does 
not understand, can validly receive absolution from him. He 
may receive it (i) whenever confession is necessary, and (2) 
whenever a confessor cannot be found who understands his 
language. 

Confession is necessary especially in the following cases: (i) 
At the time for making the annual confession; (2) when it is 
essential to a worthy reception of Holy Communion, and this 
cannot be omitted or postponed without neglecting the Easter 

194 



HEARING CONFESSIONS IN FOREIGN LANGUAGES 195 

precept, or incurring a danger of scandal or suspicion. If the 
communicant in this case were sure of being truly contrite, he 
might communicate without confession. St. Alphonsus expressly 
says that a confessor speaking only a foreign language is equiva- 
lent to one who is absent {Homo Apost., XV. sect. n. 26, 3). 
(3) When the penitent wishes or requires to receive another Sac- 
rament of the living, viz., Extreme Unction, or matrimony, and 
is not sure that he is in the necessary state of grace or of perfect 
contrition; (4) When the penitent, if deprived of the grace of 
the Sacrament of penance, is in danger of falling into grievous 
sin, or of losing the great benefits conferred by this Sacrament ; 
(5) If he, being unable to make his confession at once, would 
be obliged to remain two or three days in the state of mortal sin 
(as St. Alphonsus says, 1. VI. n. 487), or even only one day, ac- 
cording to Marc, n. 1698. This would be still more true in a 
case where immediate confession was necessary because of some 
special danger or trouble of conscience. 

The other condition required, in cases of necessity, to justify 
a priest in giving absolution without a full confession, is the cir- 
cumstance " quo non est copia confessarii, a quo poenitens possit 
intelligi" (Marca, n. 1697, 4)- Copia confessarii ought probably 
to be understood here in the same way as in the rule that any one 
who has committed mortal sin must go to confession before re- 
ceiving Holy Communion. In both cases a commandment has to 
be observed that binds de jure divino. In this sense the following 
rule may hold good : " Copia confessarii does not exist when there 
is no confessor at hand who knows the penitent's language, and 
when none can be found without great exertion, because the near- 
est is perhaps two or three hours' journey distant, or even less, if 
there are other difficulties besides distance, such as want of time, 



196 THE CASUIST— VOL, IV. 

bad health, unfavorable weather, etc. (Cf. S. Alph., 1. VI. n. 264, 
and others.) This is the general rule. If circumstances permit, 
however, it is advisable to send ignorant and spiritually neglected 
penitents to a confessor who understands their language, and even 
to do so, if possible, also in cases where confession is necessary, 
since the assistance of such a priest is often essential not only to 
the completeness, but also to the validity, of their confession and 
to the amendment of their lives. 

As to the plan devised by Titus in his zeal for souls, it is 
sanctioned and approved by several authors, for instance by Gury, 
Casus consc, II. n. 480, who discusses the right course to be 
adopted by a Catholic missionary who is the only priest in a large 
district where a language is spoken of which he is totally ignorant. 
In order that he may be able to some extent to hear confessions, 
Gury proposes to him to learn the words that denote the sins most 
frequently committed, and to repeat them interrogatively to his 
penitents, so that they, nutu capitis, or by some other sign, may 
answer affirmatively or negatively. In this way Gury thinks a 
confessor can form some general idea of the sins committed by 
each penitent. The method invented by Titus is in exact ac- 
cordance with this advice, and he deserves all possible praise rather 
than the blame given him by Commodus. In order to make his 
method still more fruitful of results, Titus will do well to notice 
the following points : 

(i) He must secure the validity of the confession by trying in 
the penitent's language to induce him to make an act of contrition, 
mentioning the chief grounds for imperfect as well as for perfect 
contrition. For still greater security he may require a short act of 
faith to be made before the act of contrition, especially in the 
necessaria fidei de necessitate medii, i. e., in the most holy Trinity, 



HEARING CONFESSIONS IN FOREIGN LANGUAGES 197 

also in the Incarnation and death of our Lord Jesus Christ. The 
penitent is sufficiently reminded of Deus remunerator in the act of 
contrition. 

(2) With regard to the completeness of the confession, Titus 
may follow Gury's method. As a rule no one can be bound to 
make a confession through an interpreter (S. Alph., 1. VI. n. 479, 
3). Although it is generally not possible for a confessor, using 
questions and forms learnt by heart in a foreign language, to 
arrive at a completely satisfactory confession, which, according 
to the Council of Trent (Sess. 14. can. 7) is required de jure di- 
vino, still a confession of sins (although not complete) is advan- 
tageous to the penitent and quiets his conscience far more than 
would be the case if he received absolution after giving merely 
some sign of contrition, 

(3) Finally, Titus should do his best to make his penitent 
understand that this confession is quite sufficient for the present 
to obtain pardon from God for all his sins, but that he is bound 
later on, when he finds a priest who understands his language, 
to make a fuller and more exact confession of sins that he has 
now been unable to confess properly. All theologians agree in 
recognizing this obligation on the part of the penitent, and the 
contrary opinion was expressly condemned by Pope Alexander 
VII, as sent, damnata. This obligation cannot be imposed in cer- 
tain cases: (a) on the dying, when there is no probability of their 
ever again seeing a priest who knows their language; (b) on 
penitents who have only venial sins, and therefore no materia neces- 
saria, to confess ; (c) on such as had only one or two grievous sins 
on their conscience, and have succeeded in making a full confession 
of these sins by the method described above; and (d) on those 
who are bona fide unaware of this duty, and of whom there is good 



198 TEE CASUIST— VOL. IV. 

reason to fear that they would not accept the admonition, or would 
later neglect, by their own fault, to follow it, so that it would do 
them more harm than good, and might possibly render their confes- 
sion altogether invalid. — Johann Schwienbacher, C.SS.R. 



LIII. THE OBLIGATION TO SAY STIPEND MASSES 

Father Paulus received a large sum of money from a lady whom 
he visited frequently during her illness, and to whom he supplied 
all consolations of religion. She asked him to see that the money 
was spent for Masses after her death. He put the money in the 
savings bank of the town, and when the lady died, two years later, 
he took out part of it in order to have Masses offered by befriended 
priests, but the rest he intended to appropriate for the Masses that he 
would say himself. As he had other similar duties to perform, 
nearly two years elapsed before he had said all the Masses. Did 
he act rightly ? 

In taking the money to a savings bank, Paulus did as he was 
bound to do. As long as the giver lived he was in the position of 
custodian of money not his own, the interest of which belonged to 
the owner. He had to deal with it as a sensible owner would do, 
and a sensible man nowadays invests his money where it will bring 
in interest. He might of course deduct car fare, and any other inci- 
dental expenses. The owner was free to appropriate the interest 
or to apply it to some definite use. As she did neither of these 
things, it was added to the capital and increased the number of 
Masses. It is plain that the lady before her death might have asked 
for the money to be returned, and have put it to some other use. 
In order to fulfil the obligations of a careful custodian, Paulus 
ought to have made a note of the source whence he obtained the 
money and the object for which it was given, so that if he should 
die suddenly, the money entrusted to him would be put to its 
proper use. 

199 



200 TEE CASUIST— VOL. IV. 

As soon as the owner died, her instructions had to be carried out, 
and Paulus was bound either to say the Masses himself, or to 
arrange for them to be said by others, and in return he acquired 
a right to dispose of the money. Hitherto he had only been its 
custodian, so that if it had been lost through no fault of his {e. g., 
if it had been stolen), he would have been under no obligations 
with regard to it, but now he was its owner, and had all the duties 
and responsibilities of ownership. If it were now lost, it would 
be his duty to have the Masses said at his own expense. 

Noldin, de sacramentis, no. 184, writes : " Inito hoc contractu 
{Do, ut facias) in sacerdotem transit dominium stipendii cum obli- 
gatione justitiae applicandi missae sacrificium ad intentionem dantis, 
cui obligatoni vel per se vel per alium satisficere potest. Si ergo 
sacerdos quocunque casu fortuito stipendiiim receptum amiserit, 
non cessat obligatio applicandi, cum res domino pereat." A con- 
trary opinion is, however, held by some authorities; Genicot, for 
instance, says ( Th. mor. inst., II. 230) : " Omitti poterant ex toto 
vel ex parte Missae mammies, si pecunia pro stipendio accepta ex 
toto vel ex parte periit, puta furto suhlata." Since the issue of the 
decree " Ut debita " by the S. C. C. May 1 1, 1904, it has not been 
permissible to hold this latter opinion, for there is in the decree an 
explicit statement (no. 6) to the effect that if any one has in any 
way undertaken to say Masses he is bound by his obligation until 
he receives from those to whom he has transferred the stipendia 
definite information that the Masses have been said, " adeo ut si 
ex eleemosynae dispersione, ex morte sacerdotis, aut ex alia qualibet 
etiam fortuita causa in irritum res cesserit, committens de suo sup- 
plere debeat et missas satisfacere teneatur." Paulus is therefore 
fully responsible for the Masses that have to be said. 

The will of the giver of the money decides the number of the 



^ THE OBLIGA TION TO SA Y STIPEND MASSES 201 

Masses and the amount of the stipendia. It is a very commendable 
custom to ask the necessary questions on this subject when the 
stipendium is given, in order that there may be no obscurity as to 
the obligation incurred and the manner of its fulfilment. The 
wish of the giver is, according to the rules of the Church {" Ut 
debita," no. 2, 4), decisive also in regulating the time within which 
the Masses are said, and the transference of the intentions. In this 
particular case the lady gave no special instructions, and therefore 
the ordinary rules of the Church ought to be observed. The 
number of Masses depends upon the amount of the money given, 
and the stipendium usually paid, or required, in the diocese. This 
is the standard for Masses provided for by a legacy, and the same 
standard is applicable to the stipendia for Masses entrusted to other 
priests. " Eleemosynam nnnqiiam separari posse a missae celebra- 
tione neque in alias res comnmtari ant imminni, sed cclehranti ex 
integro et in specie sua esse tradendani." These words are quoted 
from the decree " Ut debita," no. 9, which now is the chief authority 
on these subjects. In no. 11 it is laid down that in pilgrimage 
churches, where the faithful offer large stipendia^ nothing may be 
deducted for the good of the church. A rector may not deduct 
anything to cover the expenses for wine, candles, etc. from the 
stipendium of the priest who says the Masses, but something may 
be asked for the sacristan and servers. 

Special decisions dated February 25 and 2"^, 1905, sanction a 
custom prevailing in many places, according to which a curate says 
INIass for the parish priest's intention, or hands over the stipendium 
to him, receiving in return the ordinary maintenance, but only 
" dummodo et quousque in modo aut alius abusus non oriatur, super 
quo Ordinarii erit vigilare." The Church desires strictly to forbid 
every kind of bargaining in connection with the acceptance and 



202 THE CASUIST— VOL. IV. 

transference of stipendia for Masses. (As an exception and pro 
gratia ad quinquennium, in the archdiocese of Tarragona in Spain, 
the episcopal administrator is allowed to keep back three per cent 
of the stipendia for Masses, in return for his work and expenses, 
and in the same way the Congregation of the Most Holy Redeemer 
may make a small deduction from stipendia given, but not collected, 
for the benefit of their missions, if they are transferred.) Paulus 
gave the intentions and stipendia for them to other priests ; it did 
not even occur to him to see {e. g. Noldin, de sacr., 192) whether 
he could find a reason for diminishing the amount for his own 
advantage; as a matter of fact he would have found none that 
applied to him. 

He gave the intentions to priests whom he knew and asked them 
to say the Masses, and he acted quite correctly. The rule laid 
down by the Church (no. 5) runs as follows : " posse missas tribuere 
. . . sacerdotihus sibi benevisis, dummodo certe ac personaliter 
sibi notis et omni exceptione majoribus." The rules of the Church 
are therefore very stringent; — the priest to whom any one gives 
stipendia must be personally known, and must be a conscientious 
priest, who afifords full security that he will faithfully perform 
the duty undertaken for the giver of the stipendia. It is simpler 
if they are sent to the Apostolic See, to the Propaganda, or to papal 
delegates (for priests in the east), or to the Ordinary (in the case 
of seculars, the Bishop of the diocese ; in that of regulars, the Gen- 
eral of the Order). If this is done, all responsibility is at an end, 
for it is transferred absolutely to the Ordinary, who is equally bound 
to fulfil the obligations (nos. 6, 7). If stipendia for Masses in any 
form whatever are transferred to another priest, the person trans- 
ferring them is not free from responsibility^ until he is definitely 
informed that the Masses have been said (no. 6). This information 



TEE OBLIGA TION TO SA Y STIPEND MASSES 203 

may be given either in writing, or verbally if there seems no need 
to write. 

Since priests as well as Bishops are required to notify the fact 
that the Masses have been said, and since the S. C. C. in three de- 
crees {" Vigilanti," May 25, 1893, '' Ut dehitaj' May 11, 1904, 
" Recenti," May 22, 1907) has stringently laid down that the wishes 
of the faithful with regard to Masses are to be carried out exactly 
and conscientiously, it is the duty of every priest to conform to 
these regulations. If therefore Paulus receives no notification 
from the priests concerned, to the effect that the Masses have been 
duly said, he must make inquiries, when he has opportunity, so as 
to obtain the necessary information and quiet his own conscience. 

Paulus reserved for himself the chief part of the intentions and 
stipendia. He took from time to time the money for twenty or 
thirty Masses out of the savings bank, and then said the Masses; 
and he continued to do this until the whole sum of money, and the 
interest on it, were exhausted. He might, strictly speaking, have 
spent the interest on himself ; for as soon as he became owner 
of the money, and had undertaken the obligations attached to it, he 
could act on the principle " Res fructificaf domino." The interest 
was fructiis indiistrialis. It was praiseworthy of him to apply the 
interest also to Masses for the deceased lady, but he was not 
bound to do so. As to the time within which the INIasses ought to 
be said, besides the wishes of the lady giving the stipendia, the 
decision in the decree " Ut debita," nos. 2, 3, 4, must be taken into 
consideration. The decree states: "Utile tempns ad manualium 
missarum ohligationes implendas esse mensem pro missa una, semes- 
ire pro centum missis et aliiid longiiis vel brevius temporis spatium 
phis minusve juxta majorem vel minorem numerum missarum." 
Therefore one Mass, irrespective of its particular intention (apart 



204 TEE CASUIST— VOL. IV. 

from a possible decision expressly or tacitly stated in the intention 
by the giver), must be said within a month. This applies to each 
single Mass, and also to cases in which several people each desire 
a Mass to be said. For instance, if on All Souls' Day, thirty people 
should come to a priest, each wishing to have one Mass said, he 
must either decline to receive more intentions, or must point out 
that the Masses can only be said later. If they agree, there will be 
no further difficulty. If any one asks for one hundred Masses, 
they must be said within six months. The remark added to the 
regulation fixing the period within which Masses must be said 
shows that it is not to be interpreted too strictly. The expression 
utile and not necessarium tempiis is also characteristic. The rule 
is given in accordance with what appears useful and expedient, but 
a certain freedom is left. In comparison with six months, a period 
of three, four or five weeks is described by some authors as tempus 
breve. No. 3 contains a definite limitation : " Nemini licet tot mis- 
sas assumere quibus intra annum a die suscepfae satisfacere proha- 
biliter ipse nequeat." No. 4 requires that foundation Masses not 
said at the end of the calendar year, and manual Masses not said 
post annum a die suscepti oneris, si agatur de magna missarum\ 
numero, must be given over to the Ordinary. The Church requires 
that in the case where the giver of the stipendium has not in any 
way fixed the time when the Masses are to be said, they must be 
said within a reasonable period, and that any accumulation of in- 
tentions (numerus maximus, ingens copia, as it is called in the 
decree " Recenti"), and the risks inseparable from it, shall be 
avoided. Hitherto no more detailed instructions have been issued 
by the Church, and it would be a mistake to think that the state- 
ments made by certain writers have ecclesiastical authority. Such 
writers are Schiich-Polz, Pastoraltheologie, 15, p. 416, and Noldin, 



THE OBLIGATION TO SA Y STIPEND MASSES 205 

de sacr., no. 187. (" Si itaque ah uno eodemqiie sine determinatione 
temporis offertur una usque ad 10 missas, intra, mensem, si offerun- 
tiir 20, intra duos menses, si 40, intra tres menses, si 60 intra quatuor 
menses, si 80 intra quinque menses, si 100 intra sex menses et sic 
porro, si 200 intra annum persolvendae sunt") These detailed 
statements originated in a question asked by the Ruthenian Arch- 
bishop of Lemberg {"An juxta art. 2 termini persolutionis statiii 
possint ") ; the answer of the S. C. C. (there is no suggestion of a 
decree, although Polz speaks of one) on February 27, 1905, is as 
follows : " Rem relinqui discrete judicio et conscientiae sacerdotum 
juxta decretum et regidas a probatis doctoribiis traditas." 

The Archbishop's proposal was therefore neither accepted nor 
rejected by the Sacred Congregation; it certainly was not recog- 
nized as an official regulation, but was set aside, and the Congre- 
gation directed adherence to the decree and the rules of eminent au- 
thorities in a reasonable and conscientious way. " Ubi lex non dis- 
tinguit, neqiie nos distinguere debemns " is an old rule still in force. 

The wishes of the person giving the stipendia have more weight 
than anything else, with regard to the fulfilment of the obligation to 
say certain Masses and to the time at which they are said. The de- 
cree " Ut provida " was issued to protect the interests of the giver 
of stipendia, and in it there are several statements to this effect. 
For instance, in no. 3, " Salva semper contraria offerentium voliin- 
tate, qui aut hrevius tempus pro missarum celebratione sive explicite 
sive implicite oh urgentem aliqiiam causam deposcant, aut longius 
tempus concedant, aut majorem missarum numerum sponte sua 
tribuant " ; and in no. 4, " salva divcrsa voluntate offerentium." If 
therefore the person who has the Mass offered wishes it to be 
said on some particular day, it must be said then. Exact in- 
structions on this point are very desirable, if not actually necessary, 



2o6 TEE CASUIST— VOL. IV. 

and it is also advisable to tell the person asking for Masses whether 
or no they can be said on the days appointed. In many cases it is 
plainly the wish of the person having the Mass said that they 
should be said as soon as possible; for instance, a Mass of 
thanksgiving for a safe delivery, or a Mass for some one who 
has just died, should be said without delay; but when the Mass 
is in honor of some Saint or for the Holy Souls, the day is left 
more or less to the priest. This is particularly the case when, as 
the decree states explicitly, any one voluntarily asks some special 
priest to say a number of Masses. If a considerable sum for 
Masses is given to a priest on one occasion, the giver must of 
course be aware that it will take some time to say all the Masses. 
He agrees, in such a case as this, to their not being said within a 
year, but during a longer period. This consent can safely be 
taken for granted when the request for Masses is made to an 
individual priest or confessor, and not at the presbytery. This is 
what took place in the case under discussion. As Paulus was 
the confessor of the lady in question, she commissioned him to pro- 
vide for the repose of her soul after her death ; he may and must 
say the Masses, as far as he can and when he can; and he is at 
liberty of course to share the task with other priests by asking 
them to say Masses for the same intention. This was no doubt the 
wish of the lady who gave him the stipendia, and therefore he has 
acted quite rightly in the matter. — Prof. Asenstorfer. 



LIV. BINATIO 

In a parish the pastor was suddenly taken ill in the night be- 
tween Saturday and Sunday. Feeling himself unable to say Mass 
on Sunday, he sent for his assistant before six in the morning, and 
told him to say the early Mass as usual, because there were al- 
ready a great many people in the church who could not possibly 
attend a later Mass. He was not to take any purification or ablu- 
tion after Holy Communion, because he would have to say the 
second Mass at 9 a. m. and it was impossible to omit this Mass, 
as a number of people were expected from other parishes to cele- 
brate the meeting of a confraternity. 

The assistant pointed out that duplication was not allowed with- 
out the Bishop's permission, but the rector reassured him, and 
said that in such unforeseen circumstances one might take this 
permission for granted; he would himself report what had hap- 
pened. The assistant obeyed, and at the first Mass explained 
matters to the congregation, and later celebrated the Mass at 
nine o'clock, although he felt some anxiety, and his parishioners 
were somewhat astonished, as well as the strangers who had come 
to the festival and had heard of the occurrence. What opinion 
ought we to form of the rector's action? 

Anszver. — According to the existing laws of the Church, binafio 
(except on Christmas day) is allowed de jure communi only in 
case of necessity. A case of necessity occurs on days when the 
faithful are bound to hear Mass, and one priest has to serve two 
churches at some considerable distance apart, so that the congre- 

207 



2o8 TEE CASUIST— VOL. IV. 

gation of one church would be unable to hear Mass at all if the 
priest did not come. Another case of necessity occurs when it 
would be impossible for all the parishioners attending one church 
to be present at the same Mass. In both these cases the Bishop 
must recognize the actual necessity of binatio before sanctioning it. 
Apart from a case of absolute necessity a Bishop can sanction bi- 
natio under special circumstances (Missions, etc.), only if he has 
received faculties from the Holy See. That we have a castis verae 
necessitatis under discussion is plain. The strangers who were 
coming to the nine o'clock Mass would have missed Mass altogether 
if the early Mass had been the only one said that day, and so 
would a considerable part of the ordinary congregation. If the 
early Mass had been omitted, and the High Mass at nine 
o'clock had been the only one said that day, there would 
be good reason to fear that many of the people already 
assembled would not return, and so would miss Mass. It 
would be an incommodimi grave for them to wait three hours or 
to go to some other church, which might be far away. They 
could not hear early Mass anywhere, and the second is, as a rule, 
much later in the morning. In the short interval (from six to 
nine o'clock) it was hardly possible to obtain the Bishop's sanc- 
tion, especially if there was no telegraph office in the neighbor- 
hood, and the nearest station was some distance off. Hence it 
was quite right to take the Bishop's permission for granted, and 
all requirements were satisfied by the official report sent in later. 

Noldin (Summa theol. mor. de sacram., n. 206) discusses a 
precisely similar case, and says : " In casii improviso urgentis ne- 
cesitatis, in quo recursus ad episcopum impossibilis est, ex prae- 
sumta licentia altera missa celebrari potest, modo celebrans sit je- 
junus. Si e. g. in loco, uhi duo sacerdotes curam animarum agunt. 



BINATIO 209 

die sabbati uniis eorum morbo corripitiir, adeo tit seqiienti die cele- 
brare non possit, alter die dominica binare potest, si alius sacerdos 
haberi nequeat et alias magna pars populi (do circiter personae) 
sacro carerent. Post factum tamen res ad Ordinariiim ad recogni- 
tionem causae referenda est." (Cf. also Gury, Casus consc, II. 
n. 264). — Dr. Johann Gfdllner. 



LV. IS DAILY COMMUNION ALLOWED IN SPITE 
OF INNUMERABLE VENIAL SINS? 

Whoever maintains, assuming the state of grace to exist, that 
daily Communion is permissible in spite of the presence of in- 
numerable, or even very many, venial sins, is directly opposed to 
the first three practical points in the decree of December 20, 1905. 

In the first place, he overlooks the good and pious intention, 
emphasized in the first two points as an indispensable condition; 
for such an intention is altogether incompatible with innumerable 
or a great many venial sins. Any one who commits innumerable 
venial sins must be aware that he is deficient in a good intention 
at Holy Communion, and has wilfully a bad intention of going 
to receive it merely out of habit, or vanity, or from motives of 
human respect. If any one communicates daily for some time as 
a matter of course, although he has innumerable venial sins on 
his conscience, he is paying no attention to one of the chief 
reasons for receiving Holy Communion daily, which is that by 
means of this divine remedy our weakness and frailty may be 
cured. 

The third practical point in the decree also suggests a negative 
answer to the question whether daily Communion is permitted in 
spite of innumerable venial sins. We shall do well here to follow 
the text, which runs thus: Etsi quam maxime expediat ut fre- 
quenti et quofidiana communione utentes, venialibus peccatis 
saltern plene deliberatis eommque affectu sint expertes, sufficit 
nihilominus ut culpis mortalihus vacent, cum proposito se nun- 

210 



DAILY COMMUNION AND VENIAL SINS 2 1 1 

quam in postermn peccaturos; quo sincero animi proposito fieri 
non potest quin quotidie commnnicantes a peccatis etiam venia- 
libus, ah eorumque affectu sensim se expediant. 

The Congregation of the Council distinguishes here three things 
that are unfortunately often confused, even at the present day. 
In the first place, it praises and recommends {etsi maxiine ex- 
pcdiat) the best and most desirable dispositions, which are how- 
ever merely matters of counsel, viz., freedom from all venial 
sins and from all attachment to them. By these words it con- 
demns any complete and unscrupulous indifference on the part of 
daily communicants to innumerable or all possible venial sins. 
Let us imagine a physician saying to a patient : " Your best plan 
is to take this medicine as far as possible when you are fasting, 
although it is not absolutely necessary for you to do so." The 
patient would certainly be acting contrary to the express wish of 
his doctor if he disregarded his advice to the extent of always 
eating as much as possible before taking his medicine, thus not 
trying in any way to comply with the physician's instructions. 
In the same way it is plain that a person acts altogether in op- 
position to the will of the Church, if he commits as many volun- 
tary venial sins as he can, and then has no scruple in approach- 
ing Holy Communion daily. In the second place, the Church em- 
phasizes the indispensable and sufficient conditions for Communion, 
viz., freedom from mortal sin and an intention never to sin in future. 
It might strike any one considering these words closely that the 
good intention previously emphasized is here simply called a reso- 
lution not to sin. " Why," it may be asked, " did the Congrega- 
tion of the Council, in the very sentence in which it distinguished 
venial and mortal sins, describe the necessary resolution merely 
by the words nunquam so peccaturos, without adding graviter 



212 THE CASUIST— VOL. IV. 

or mortaliter to make the meaning clear, as many translators 
have done, interpreting the meaning according to the usage of 
moralists ? " 

We think that the following suggested explanation is probably 
correct: This identification of the resolution — never to sin again 
— with the required good intention, and especially the omission 
of the word graviter before peccatiiros, show that the S. Con- 
gregation wished to avoid any appearance of sanctioning daily 
Communion in the case of those who, being in the state of grace, 
resolve only to avoid mortal sin, but take no pains to avoid venial 
sin, — which is equivalent to being indifferent to innumerable 
venial sins. Even if this explanation is incorrect, we are in a 
position to prove that the Congregation of the Council meant 
mortal sin more immediately, when using the word peccaturos, 
but at the same time considered the resolution quite incompatible 
with complete indifference to innumerable venial sins, and far 
more incompatible with a positive determination not to trouble 
at all about venial sins. A real resolution never again to sin 
(grievously) implies, at least in a general way, the further reso- 
lution to avoid all immediate occasions of mortal sin and to use 
all needful means to prevent it. It is an axiom, based both on 
asceticism and experience, that complete indifference to quite 
deliberate venial sins gradually leads to mortal sin, because the 
will constantly grows weaker and because the special graces, 
without which the soul cannot remain in the state of grace, are 
withdrawn more and more. Therefore complete indifference to 
innumerable venial sins is absolutely incompatible with a genuine 
resolution never in future to sin (grievously), quite apart from 
the fact that such a communicant would not possess the good 
intention that is required. 



DAILY COMMUNION AND VENIAL SINS 2 13 

We are now in a position to understand the conclusion of the 
third paragraph of the decree : " If they have this sincere pur- 
pose, it is impossible but that daily communicants will gradually 
emancipate themselves even from venial sins, and from all affec- 
tion thereto." 

It is not correct to say that constant resistance to venial sin is 
of necessity contained in the condition, required by the decree, 
for daily Communion. What really follows of necessity from 
the practical instructions in the decree is that, at the time of 
Communion, we must not only be in the state of grace, but have 
the good intention (we need not discuss other good intentions), 
the firm resolution " by means of this divine remedy to cure our 
faults and frailties," or at least to avoid mortal sin, and conse- 
quently to resist venial sins in so far as they may become im- 
mediate occasions of mortal sin. If we are trying to find out the 
necessary conditions and conclusions, and nothing more, it ap- 
pears not essential that this resolution should be permanent, but 
sufficient if it is present actually, virtually or habitually, at the 
time of Communion. Assuming such a resolution to be present, 
the daily reception of Holy Communion, supplying, as it does, 
an increase of grace ex opere operoto, will produce a permanent 
and habitual disposition of mind, and the daily renewal of good 
intentions and of the pious practises connected, ex opere operantis, 
with daily Communion. It is impossible that these means will 
not result in energetic resistance to venial sins, so that they will 
gradually be diminished in number, and all attachment to them 
will be destroyed in the soul, although it may never be completely 
exterminated. The soul will be constantly under the influence 
of quite extraordinary graces, and will cooperate with them in a 
truly heroic manner. 



214 TEE CASUIST— VOL. IV. 

The more resolutely one struggles against venial sins, the better 
in his disposition for daily Communion, and the greater is the 
benefit that he derives from it. In cases where there is no effort 
at all made to avoid deliberate venial sins, and where there is 
complete indifference to them, a communicant ought to be gently 
admonished and encouraged to do better, and, if this has no 
effect, it should be explained to him that he cannot conscientiously 
receive Holy Communion daily in such dispositions, for he has 
not the necessary good intention, and an absolute absence of all 
progress becomes in time a certain sign of defective intention. 

Every priest ought to keep in view the charitable spirit of the 
Decree and the fact that, in issuing it, the Holy Father's chief 
intention was to advocate and restore the practise of frequent 
and daily Communion. 

Persons liable to commit mortal sins, who by help of the Sacra- 
ments and especially by means of daily Communion succeed, in 
spite of many falls, in gradually overcoming their habitual sins, 
undoubtedly possess the requisite degree of good will, and ought 
not, during this period of struggle, to be judged harshly because 
of their persistence in many venial sins, but rather leniently be- 
cause of their honest resistance to mortal sin. A similar remark 
may be made with regard to those who, for some time after their 
conversion, find it very hard to stand firm. In spite of many 
venial sins they often make really heroic efforts, and obtain the 
strength to do so chiefly from frequent or daily Communion. 
With others, whose position is more assured, we may in time 
become more strict with regard to venial sins, should they appear 
quite indifferent to them. 

With respect to the struggle against venial sins necessary in 
daily communicants, the truth lies midway between lax indif- 



DAILY COMMUNION AND VENIAL SINS 215 

ference to innumerable, deliberate venial sins and the other very 
desirable, but not absolutely indispensable extreme, — constant 
resistance to all sin. This was the normal practice in the Church, 
recog-nized by St. Thomas Aquinas and the Council of Trent, and 
followed by the early Christians and the Fathers. After falling 
into abeyance for a time, it has been restored in its original form 
by Pope Pius X.— J. Bock, S.J. 



LVI. REVALIDATION OF MARRIAGE AFTER AN 
ARBITRARY SEPARATION 

Rufus and Veronica were married according to the rites of the 
Church, but as he had sinned with her sister before his marriage, 
and had obtained no dispensation, their marriage was invaHd 
before the interior forum. 

He left Veronica of his own accord, in consequence of family- 
quarrels; long after, he went to confession and disclosed his 
anxiety regarding the invalidity of their marriage, asking for 
advice. The question arose : " Is a revalidation in the interior 
forum possible after a separation of this kind has taken place?" 

It is certainly possible if they both renew their consent, provided 
they begin to live together again; but a sanatio in radice cannot 
be effected, if one party plainly no longer intends to regard the 
other as a partner. 

Provided they are reconciled, a revalidation of their marriage 
can take place; but if they continue to live apart, an ecclesiastical 
recognition of the nullity of the first marriage might be obtained 
by means of oaths, and both would be free to marry again, though 
their children would be legitimate, owing to the bona fides of the 
one party. — Honorius Rett, O.F.M. 



216 



LVII. SECRET COMPENSATION JUSTIFIED BY A 
PROMISE 

Martina, a woman in poor circumstances, had a wealthy sister 
Rosina, who was a widow with children. The latter said to her: 
" If you will send your clever daughter, Caroline, to college, I 
will pay all her expenses." In consequence of this offer, Caroline 
finished her course at the high school, and with her aunt's con- 
sent proceeded to the college. Rosina kept her word and paid all 
Caroline's expenses until the time of her death, which occurred 
suddenly. Martina, knowing that her sister had left no will, at 
once took $1000 out of her sister's cash-box, a sum which prob- 
ably would barely suffice to enable Caroline to complete her 
course. The question is asked whether Martina acted rightly. 

With regard to private compensation or indemnification, St. 
Alphonsus writes as follows in his work " Homo Apostolicus '* 
(X. n. 21): "Three conditions are necessary if private indem- 
nification is to be admissible: (i) The debtor must incur no loss 
by it; (2) the debt must be just and certain; (3) it must be 
impossible to obtain payment in any other way, for which reason 
a creditor should first claim the money by legal methods ; although, 
should any appeal to law on his part involve great expense, or 
hostility, or any other disadvantage, he does not commit a mortal, 
or even a venial sin, if he fails to have recourse to it on that 
account." 

A debt is regarded as certain, if it depends legally on jiistitia 
commutativa, and not merely ex fidditate or some other Christian 
virtue, and if there are no reasonable doubts as to the facts of the 

217 



2 18 THE CASUIST— VOL, IV. 

case. Authorities warn us against private indemnification in cases 
where the advantage is based on a mere promise, since a promise, 
even after it has been received by him for whose benefit it was 
made, is generally, according to a very probable opinion, binding 
not ex justitia commutativa, but only ex fidelitate, and it is often 
uncertain whether the person who made the promise really in- 
tended to impose upon himself an obligation binding on his 
conscience. 

Although the laws of Church and State seem opposed to our 
regarding private indemnification as permissible in the case under 
consideration, there are several good reasons for thinking it 
allowable. 

(i) By her promise Rosina imposed a charge not only on 
herself but on her property, so that it may be treated as a pro- 
missio realis. She was entitled to do this if it was not to the 
disadvantage of any possible creditors, and involved no danger 
of diminishing the proportion that she was legally bound to leave 
to her heirs. That she fully intended to pledge herself appears 
from the implied agreement : " do ut facias " : i. e., " I pay the 
expenses, if Caroline studies." Such a promissio realis, accord- 
ing to Lehmkuhl (n. 1062, 4), passes on to the heirs: "si post 
promissionem acceptam sed ante executionepi moritur proinittens, 
promissio realis transit ad haeredes; promissio personalis non 
transit." 

As secret indemnification seemed to be the only way by which 
Martina could obtain, after Rosina's death, the money to which 
she was entitled, it cannot be considered Wrong. But the whole 
amount must be spent on Caroline's education. If for any reason 
she should not complete her course, the balance properly belongs 
to Rosina's heirs. 



SECRET COM PENS A TION JUSTIFIED BY A PROMISE 2 1 9 

(2) If the person promising foresees that failure to comply 
with his promise would cause serious loss to the other party, the 
promise is binding, even a purely personal promise, ex justitia 
commutativa: " quaevis promissio per accidens obligat ex justitia, 
si proxinius ex non servata promissione damnum pateretur " 
(Marca, n. 1062), a circumstance that would plainly occur in 
this case, if Caroline were unable to continue her studies after 
Rosina's death. This is another and very important reason for 
regarding the secret indemnification as permissible. 

(3) A third reason would exist if Martina took the money 
from her dead sister's cash-box bona fide, believing that she had 
a right to it; for in this case, even if the promise were purely 
personal, there could be no obligation to make restitution. To 
the question : " an promissarius occulte suscipere possit rem pro- 
inissam, si haeredes promissioni stare recusent" Marc answers 
(n. 1062, q. 4): " Nego, cum probabiliter res non debeatur ex 
justitia. Si tamen bona fide rern occupaverit, potest earn retinere, 
donee sententia judicis aliter statucrit, ob probabilitatem bpinionis 
obligationem justitiae affirmantis. In conflictu enim opinionum 
probabilium, standiim est pro possessore, sit notiim est." 

These arguments justify us in regarding Martina's secret 
indemnification as quite permissible. — ^Johann Schwienbacher, 
C.SS.R. 



LVIII. DELEGATION FOR THE PAROCHUS PRO- 
PRIUS OF THOSE ABOUT TO BE MARRIED 

The rector of the parish church at X was summoned one morn- 
ing from his confessional to the sacristy. He found there two 
people anxious to be married, and their witnesses. They all came 
from a town in another diocese, but they were accompanied by 
their parochus proprius, who asked the rector's permission to 
marry them there. The permission was readily granted, and the 
rector was careful to add that he also gave the delegation, which 
was necessary according to the decree " Ne temere." The other 
priest replied : " I do not need that, for I am the parish priest of 
the couple about to be married." This opinion was expressed 
so decidedly as to make any discussion then and there inadvisable. 
The strange priest then proceeded with the marriage ceremony, 
but when all was over, an argument arose on the subject, in the 
course of which he referred to a decision published in the Acta 
S. Sedis in answer to several questions, one of which {dubium IX) 
was said to run as follows : " Ubinam et qiwmodo parochus, qui 
in territorio aliis parochis assignato nonnullas personas vel fa- 
milias sibi subditas habet, matrimoniis adsstere valeat." The an- 
swer to this was : '' Affirmative, quoad suos subditos tantum, ubique 
in dicto territorio, facto verbo cum SsmoJ' 

It is asked which of the two views is the correct one? 

Answer. — I. The priest from the other town quoted the de- 
cision of the Congregation of the Council of February i, 1907, 
{Acta S. Sedis, V. xH, p. iii) quite correctly, but he entirely 



DELEGA TION FOR THE PA ROCH US PROPRI US 221 

failed to understand it. The decree " Ne temere " states clearly 
that the priest can assist validly at a marriage only (dumtaxat) 
within the boundaries of his own parish. As soon as he goes 
beyond them, he ceases to be the parish priest able to act as testis 
aiitorizahilis at a marriage, and if he desires to officiate at a mar- 
riage in another parish, he requires the authorization of the paro- 
chus loci. 

The decision of the S. C. Concilii quoted by this priest applies 
to the right to officiate at marriages possessed by priests who ex- 
ercise the cure of souls, not in a particular territory assigned to 
them, but over certain families or individuals living within the 
jurisdiction of another parish priest (for instance, army chaplains). 
It appears from the Votum Consiiltoris {Acta S. S., V. xli, p. 86, 
etc.) that the decision quoted was eUcited by a question, asked by 
the Archbishop of Compostella, as to whether the priest of S. Maria 
de Coricela in Compostella, who held jurisdiction as parish priest 
over only a few families in the town, could validly officiate at the 
marriages of his parishioners. This question was drawn up in 
general terms by the S. C. C, and it was decided that such priests, 
having no parish of their own, might validly marry their subjects 
in the parishes of other priests, in spite of the " No temere " decree. 

The priest from the other town was therefore entirely mistaken 
in appealing to this decision of the S. C. C. He appears to think 
that the old regulations of the Council of Trent are still in force 
on the subject of marriage, according to which a parish priest 
could validly marry his parishioners anywhere. The rector of X 
acted both correctly and courteously, in giving unasked the dele- 
gation that enabled his confrater to marry the couple in the church 
at X. 

II. At this point, however, a peculiar difficulty arises in con- 



222 THE CASUIST—VOL. IV. 

nection with the case. This priest declared decidedly that he did 
not need any delegation, being the parish priest of the people 
whom he was about to marry. These words were spoken with 
assurance, and seem to imply an absolute refusal to accept the 
delegation offered. He apparently united the couple on his own 
authority, and the rector of X, not quite knowing how to act, let 
him do as he liked. 

Two questions present themselves: the quaestio juris: (a) Is 
the acceptance of the delegation on the part of the priest delegated 
to perform the ceremony essential to the validity of his action? 
and the quaestio facti: (b) Did this priest really not accept the 
delegation from the rector of X, who was competent to give it? 

(a) Authorities on Canon Law do not all answer the first ques- 
tion in the same way. The chief priest in any parish, in virtue of 
his office, and quite irrespective of any arbitrary acceptance or 
refusal on his part, possesses the faculty to solemnize marriages. 
Whether he will or not, his presence confers upon the declaration 
of consent that he obtains without compulsion (Ne temere, IV. 
§3) from the man and woman the necessary sanction, so that 
they enter into a true Christian marriage. If a priest is not in 
charge of a parish, he must obtain the faculty of testis autorisa- 
hilis before the wedding, and he must do so by requesting the 
priest who is competent to act to delegate to him his power. Be- 
fore a legal tribunal no refusal to accept the power delegated can 
affect the matter at all, if the person receiving is canonically 
dependent on the person giving the delegation; the former has 
no power de jure to refuse it, therefore there is required no 
acceptance. 

If, for instance, a Bishop delegates some particular priest to 
perform all the marriages in a certain district, he is eo ipso com- 



DELEGA TION FOR THE PAROCHUS PROPRIUS 223 

patent to officiate in virtue of the Bishop's orders, and he cannot 
destroy this canonical quahfication even by a positive refusal to 
accept the delegation. As far as I know, all canonists agree up 
to this point. (Cf. Wernz, Jus Decretalium, IV. p. 287, n. 218, 
and the authors, early and recent, quoted in that passage.) 

If, however, the priest receiving the delegation is not canoni- 
cally dependent upon the priest giving it, then, according to the 
general principles governing transference of privileges, powers, 
and authority from one person to another, acceptance on the part 
of the person delegated is an essential condition for the validity 
and force of a marriage delegation. This view is taken by Wernz 
{I. c.) ; he defends it on theoretical grounds and also refers to 
the authority of the S. C. Concilii in the Causa Neapolitana sen 
Puteolana, 3 Julii, 1734 (given in Richter, Concil. Trident., p. 230, 
etc., n. 58), in which the third reason given for the decision is: 
" Vicarium Puteolanum non acceptasse licentiam sen delegationem 
parochi Rugiani, sed ilia uti noliusse, adeo ut, ubi etiam curat us 
Rugiani potuisset tunc temporis did parochiis Mariae, matrimo- 
nium non esset validmn, quia acceptatio delegationis est conditio 
pro ejus validitate oninino necessaria." 

Wernz quotes in support of his view Sanchez, Schmalzgruber, 
and Rosset; it is adopted also by the following more recent 
writers, — Aichner (Compendium j. e. § 192, etc.), Binder- 
Scheicher (Praktisches Handbuch des katholischen Eherechtes, 
p. 172), Wouters {Comnientarius in decretum " Ne temere," p. 
63), Leitner (Lehrbuch des katholischen Eherechts, p. 328, etc.) 
and others. 

Scherer (Handbuch des Kirchenrechts, II. pp. 204, n. 193) 
takes another view of the matter. It is true that he makes the 
validity of the delegation depend upon the delegate's knowledge 



224 THE CASUIST'-VOL. IV. 

of it, but he adds, on the point whether the formal acceptance 
of the delegated power is essential : " Consistency seems to require 
a negative answer." No one can deny this who adopts Scherer's 
view of the delegation as follows (/. c, p. 203) : " Strictly speak- 
ing, a delegation confers upon the man and woman about to marry 
the permission to make their declaration of consent before the 
delegate instead of their proper priest or ordinary." If this defi- 
nition is adequate, then undoubtedly not only the acceptance of 
the delegation, but even the knowledge of its existence, ceases to 
be essential to the validity of the delegate's action. Scherer quotes 
Engel {Collegium universi juris can., 1. VI. tit. III.) in support 
of his opinion; and Engel shows much skill in refuting the ar- 
guments of his opponents, but nevertheless the preponderance of 
authorities seems to be in favor of regarding acceptance of the 
delegation as a condition essential to its validity. 

(b) The last question to consider is whether the strange priest 
accepted the delegation given him by the rector of X, or not. His 
categorical statement, " I need no delegation," seems to imply 
a rejection of it. It is, however, only the expression of the specu- 
lative mistake which the priest was making. The practical in- 
tention, which all the circumstances prove him to have possessed, 
was to marry his parishioners in a valid and correct way. Such 
an intention is quite compatible with a mistake. He came with 
his parishioners and asked the rector of X for permission to marry 
them in that church. He declared the delegation given him to 
be unnecessary, ex ignorantia invincibili or vincibili, but this does 
not affect the objective fact that he was really delegated and knew 
that he was, and intended to secure for his parishioners a valid 
and regular marriage. Even according to the stricter view this 
would suffice to render a marriage per delegationem valid. An 



DELEGA TION FOR THE PAROCHUS PROPRIUS 2 25 

express and formal acceptatio delegationis cannot be proved to be 
indispensible, either from any positive regulations or for theoreti- 
cal reasons. The theory that an acceptance of the delegation is 
unessential is certainly a probable one, and in any case we may 
fall back on the consoling principle : "in dubio standum est pro 
valore actiis." There is no reason at all for questioning the valid- 
ity of the marriage. — Dr. W. Grosam. 



LIX. WINE WITHOUT WATER AT MASS 

A clumsy server let the water-cruet fall at the offertory, and 
its contents were wasted. He went into the sacristy, but could 
not find the water-bottle to refill the cruet. He went back to the 
altar, and told the priest, who was saying Mass, what had hap- 
pened, and he, regarding the defectus aquae as unimportant, 
consecrated the wine without it. Quid ad casum? In the Decre- 
tum pro Armenis^ it is explicitly stated that at the institution 
of the Holy Eucharist our Lord used a chalice containing wine 
mixed with water : " Juxta testimonia sanctorum Patrum ac Doc- 
torum Ecclesiae pridem in disputatione exhibita creditur, ipsum 
Dominum in vino aqua permixto hoc instituisse sacramentum." 
With regard to the above-mentioned testimonia Patrum et Doc- 
torum, it is enough to point out that the earliest ecclesiastical 
authors speak of the mixed chalice, calix mixtus, iroriqpiov KeKpafiivov. 

In his well-known account of the Christian observance of Sun- 
day, Justin Martyr says (ApoL, I. c. 67) : "A/oros Trpocrc^cpcTat koX 
oivos KoX i'Sojp. Similar language is used by Irenaeus (Adv. haer., 
V. 2, 3) and St. Cyprian (Ep. 63 ad Caecil., n. 13). 

The third provincial synod of Carthage in 397 gave instruc- 
tions (can. 22), " ut in sacramento corporis et sanguinis Domini 
nil amplius offeratur quam ipse Dominus tradidit h. e. panis et 

1 Denzinger-Bannward, Ench. synib. 698 (593). The instruction on the Sacra- 
ments, given in the decree, is not a definitio de materia et forma sacramentorum, as 
many suppose, but only a practical rule, claiming, however, to have full authority. 
It is taken almost word for word from St. Thomas's opusculum " de fidei articulis 
et septem sacramentis " (/. c, 695, note i). 

226 



WINE WITHOUT WA TER AT MASS 227 

vinum aqua mixtum." The second synod of Trulla (the so-called 
Quinisexta) in the year 692 threatened Armenian Bishops and 
priests with removal, if, like the Monophysites, they consecrated 
unmixed wine. The symbolical reason for the addition of water 
to the wine is given in the Decretum pro Armenis, I. c. " quia hoc 
convenit dominicae passionis repraesentationi. Inquit enim beatus 
Alexander papa quintus a beato Petro: In sacramentorum obla- 
tionibus, quae intra Missaritm solemnia Domino offeruntnr, panis 
tantum et vinum aqua perniixtum in sacrificium offerantur. Non 
enim debet in calicem Domini aut vinum solum aut aqua sola 
offerri, sed utrumque pcrmixtum: quia utrmnque, id est, sanguis 
et aqua, ex latere Christi profluxisse legitur.' Turn etiam, quod 
convenit ad significandum hujus sacramenti effectum, qui est 
unio populi christiani ad Christum. Aqua enim populum significat, 
secundum illud Apocalypsis: . . . Aquae midtae . . . populi multi 
{Ape. 17, 15), Et Julius papa secundus post beattan Sylvestrum, 
ait: ' Calix Dominicus juxta canonum praeceptum vino et aqua 
permixtus debet offerri, quia videmus in aqua populum intelligi, 
in vino vero ostendi sanguinem Christi. Ergo cum in calice vinum 
et aqua miscetur, Christo populus adunatur, et fidelium plebs ei, 
in quern- credit, copulatur et jungitur.' " With reference to this 
important symbolism the Decretum pro Armenis contains a strict 
command: " Decernimus igitur, ut etiam ipsi Armeni se cum uni- 
verso orbe christia:no conforment; eorumque sacerdotes in calicis 
oblatione paululum aquae, prout dictum est, admisceant vino." 
The Council of Trent (Sess. XXII. c. 7) gave almost the same 
reason for renewing this order : " Monet deindc sancta Sy nodus, 
praeceptum esse ab ecclesia sacerdotibus, ut aquam vino in calice 
offerendo miscerent, tum quod Christum Dotninum ita fecissc 
credatur, tum etiam quia e latere ejus aqua simul cum sanguine 



228 TEE CASUIST— VOL. IV. 

exierif; quod sacramentum hac mixtioite recolitur, et cum aquae 
in apocalypsi beati Joannis populi dicantur, ipsius populi fidelis cum 
capite Christo unio repraesentatur " (Denzinger-Bannwart, 945 
(822). The corresponding can. 9 (l. c. 956) contains a similar 
statement. 

Taking into consideration this command so often repeated by 
the Church, based as it is on our Lord's own example and on 
deeply significant symbolism, theologians agree in saying that it 
is an obligatio sub gravi to mix the wine with water at Mass. 
The only difference of opinion is regarding the character of the 
law, which some maintain to be a praecepfum divinum, and others 
only a praeceptum ecclesiasticum. Cf. Miiller (Theol. mor., III. 
p. 213), Lehmkuhl {Theol. mor., 11. n. 118), Gopfert {Moraltheo- 
logie, III. 52), Genicot {Theol. mor., II. n. 172), Bucceroni {Instit. 
teol. mor de euch., n. 7), and Noldin {Theol. mor., III. n. 109). 
The last-named says plainly : " Tarn grave theologis videtur esse 
hocce praeceptum, ut mdlum admittant casum, in quo licitum sit 
celebrare, si praevideatur defectus aquae." 

In the case presented to us the priest was therefore too lax. 
On hearing what the server said, he should not at once have been 
satisfied that no water could be obtained. It was his duty to 
send the server to fetch some (it could not have been difficult 
to get a little water), and meantime to wait quietly. If the in- 
terruptio missae seemed likely to last unduly long, he might have 
continued the Mass, and have added the water, that had been 
fetched in the meantime, ante consecrationem. — Dr. Johann 
Gfollner. 



LX. NEGOTIATIO FORBIDDEN TO THE CLERGY 

(i) Are the clergy allowed to speculate on the rise and fall 
of shares? 

(2) Are they altogether forbidden to have anything to do with 
business on the stock exchange? 

(3) If they have in their possession shares that stand at a 
high price, may they not sell them and buy others at a lower 
price, and so make a profit? 

According to Canon Law a cleric is forbidden to have anything 
to do with any negotiatio quaestuosa (as opposed to negotia 
oeconomica). 

By a negotiatio quaestuosa is understood any business in which 
things are bought and sold again for profit, either in the same 
condition or altered by the hired labor of others. A priest may 
therefore sell for profit things that he possesses or has bought 
for his own use, even if they are not superfluous. He also may 
buy things, and sell them for profit, after they have been altered 
or improved, provided the whole transaction is not unbefitting to 
one in his position. But he must not employ others to alter and 
improve the things before selling them for a higher price than 
that at which he bought them, because then he would be carrying 
on a business by means of others. 

This prohibition applies to all who have received major orders, 
to all holding benefices, even if they have not received major 
orders, and to all regulars. It is a binding rule, but admits of 
trivial exceptions, so that certainly only a venial sin is committed 
if only little business transactions take place, with objects of small 

229 



230 THE CASUIST—VOL. IV. 

value. It is not a grievous sin if some more important business 
is transacted once, or even now and then. Whether the clerg}^ 
are allowed to take part in joint-stock companies or in stock- 
exchange business, has been frequently discussed. 

(i) It is certainly permissible to buy bonds issued by state or 
town, and to take interest upon them, for this is simply investing 
money at interest. 

(2) It is certainly permissible to take bonds of joint-stock 
companies, because, in this case also, it is equivalent to lending 
money at interest. If the company exists for some bad object 
the question will arise as to whether it is right to cooperate 
with it, 

(3) It is a very debated point whether the clergy may take 
shares in a joint-stock company. Many regard it as altogether 
inadmissible for the clergy to take shares, because thus they take 
part in a money-making business. Others distinguish between 
industrial undertakings and trading companies; they think it 
wrong for the clergy to take shares in the latter, but they con- 
sider it permissible for them to take shares in industrial com- 
panies, such as mining, railways, and tramways. A double diffi- 
culty is very apt to occur in the case of many industrial under- 
takings, (a) that in them a man carries on a business through 
some one else, and (b) that these undertakings may generally be 
regarded as trading companies. Wernz, for instance (III. n. 219), 
considers a watch factory to be a trading company. On this there 
are several decisions of the S. C. Off. to be taken into account. 
According to a decree dated November 17, 1875, it is permitted 
for the clergy to buy shares in railway and other similar com- 
panies (this probably includes trolley lines, steamship and canal 
companies). A decision dated April i, 1857, had authorized 



NEGOTIA TIO FORBIDDEN TO THE CLERGY 231 

Bishops to give such permission " dc propria persona tantum " ; 
but of course it was not intended that endowments could be ap- 
plied to such purposes, or that the clergy should borrow money 
in order to take shares. As to bank shares, a decision of April 15, 
1885, states : . . . " nan esse inquietandas personas ecclesiasticas 
si emant actiones sen titulos mensae nummidariae, dnmmodo para- 
tae sint stare mandatis S. Sedis et se abstineant a. qualibet ac- 
tione dictarum actionum sen titulorum et praesertim ab onini actii, 
qui dicitur dei giuochi di borsa." A priest may therefore hold 
shares in a bank, but he may not take any part in the management, 
or attend general meetings. A difficulty is likely to arise here 
from the fact that many banks are connected with stock-exchange 
speculations and other forbidden proceedings. 

It is permissible to take shares in an insurance company, pro- 
vided that they do not serve any bad purpose. The clergy may 
also take shares in a company formed to build a Catholic club- 
house or to start a Catholic paper, as in such cases the object of 
the company is not to make money, but to promote some good 
end. 

(4) Gambling on the stock exchange is forbidden to the clergy, 
as appears from what has already been said. Therefore to buy 
bonds and sell them, speculating on their rising or falling in value, 
especially in time bargains and such matters, in order to make 
a profit, is negotiatio qua£stuosa, and therefore forbidden. 

In answer to the questions submitted to us, we may reply: 
(i) The clergy are not allowed to carry on any speculations in 
shares, in the sense just stated, because they are stock-exchange 
speculations. 

(2) It is not stock-exchange business, but stock-exchange spec- 
ulation, that is forbidden. 



232 TEE CASUIST— VOL. IV. 

(3) The clergy may certainly sell shares that stand at a high 
price and buy others of lower value with a view to making a 
profit; or they may buy shares that stand low, in hopes of their 
rising in value. This does not amount to speculation. The clergy, 
however, are advised to make only safe investments, in order not 
to lose their own savings, and not to risk money derived from 
church property, which ought to be applied to good purposes. — 
Dr. Goepfert. 



LXI. JURISDICTIO SUPPLETA 

A secular priest, possessing the usual diocesan faculties ad 
triennium, but holding no other official position, is appointed, 
conjointly with other priests, to act as confessarius at a students' 
institute. In the full belief that his jurisdiction has not yet ex- 
pired, he hears a number of confessions, and discovers only some 
days afterwards that he has made a mistake, for his jurisdiction 
expired some weeks previously. 

Question. — Were the absolutions that he gave valid? 

Answer. — This is undoubtedly a case of jurisdictio suppleta in 
errore communi cum titulo colorato. The pupils at the institute 
could not possibly be aware that the priest's jurisdiction was at an 
end, nor could any one else know it, and consequently there was 
certainly an error communis, and the other condition, vis., the 
titulus coloratus, was also present. The bestowal of any office 
with which the duties of a confessarius are intimately connected, 
such as an appointment to be parish priest, proves a titulus to exist, 
and a direct and formal appointment to be a confessor must do 
so still more. If the appointment to any such office is null and 
void, owing to some secret flaw (simony), or has been subse- 
quently revoked, by the will of a superior, there is a titulus colora- 
tus so called to distinguish it from a titulus existimatus, which is 
a titulus never conferred at all by the ecclesiastical authorities, but 
only believed by the faithful to exist, as when a parish priest has 
been appointed by the state. 

As the secular priest in question was directly and formally ap- 
233 



234 THE CASUIST— VOL. IV. 

pointed confessor to the institute by the episcopal Ordinary, the 
Church furnished his jurisdiction, according to the titulus colora- 
tus which the ecclesiastical authority had bestowed upon him. 
Many authors extend this furnishing of jurisdiction also to a 
titulus existimatus. 

There is a further circumstance connected with those penitents 
who perhaps confessed only a materia libera (venial sin, or 
grievous sin already confessed). Since the issue of the decree 
" Cum ad aures " by Innocent XI on February 12, 1679, it has 
not been lawful for priests without approbation and jurisdiction 
to pronounce absolution even from venial sins, but the validity of 
such an absolution is still regarded as at least speculative probabilis. 
According to the general teaching of theologians, the Church will 
certainly supply any jurisdiction that may be wanting in casu 
jurisdictionis speculative probabilis. — Dr. Johann Gfollner. 



LXII. SEAL OF THE CONFESSIONAL IN COURT 

A lawyer consulted a priest regarding the following case: 

Some time ago a certain person — whom we will call Anna — 
died, and in her will bequeathed all her property to a farmer in 
whose house she had for many years received very kind hospitality. 
She did not mention her relatives in her will, but they are now 
questioning its validity and declaring that she was in her dotage 
and incapable of making a will at all. The farmer, however, who 
has inherited the property, says : " Anna was not altogether weak 
in her mind, for she often went to confession and Holy Com- 
munion; you have only to ask her confessor, our parish priest." 
" It is my duty," said the lawyer, " to defend the will, and I do 
not know whether to call the priest as witness or not. It would 
be unpleasant if he refused to answer before the Court, and 
pleaded the seal of the confessional. What would you do? " The 
priest whom he was consulting hesitated a little and then re- 
plied : " I should refuse in court to give any answer at all with 
reference to the confessional." 

Is this priest's opinion correct? 

According to Miiller, Theol. Mor., III. § 169, Sigillum sacra- 
mentale generatiin omnia comprehendit in confessione manifes- 
tata, quorum revelatio cederet in odium Sacramenti et grava- 
men poenitentis. A priest therefore must never reveal the 
sins confessed, nor their circumstances and causes, nor the 
penance imposed, nor any natural infirmities and tendencies 
in his penitent, e. g., a tendency to scrupulosity, for these things 

23s 



236 THE CASUIST— VOL. IV. 

become known to him in the confessional. The fact that a penitent 
has made a confession to a certain priest cannot be a secret. The 
only case in which a priest ought not to state that he has heard a 
confession is if such a statement would lead others to infer that 
the penitent had committed and confessed some particular sin. 
There is no reason to fear anything of the kind in the case under 
discussion, where no particular sins, but the general intelligence of 
the deceased penitent, is in question. 

What ought the priest to say if the judge asked him directly 
to give his opinion of Anna, and to say whether he considered 
her weak-minded or responsible for her actions? He would then 
be required to state whether, on the ground of her confession, 
he regarded Anna as capable of sinning and of receiving absolution. 

Without betraying any secret, he could answer this question 
affirmatively, since he had allowed Anna to receive Holy Com- 
munion, and he would not have done so, had he not been able 
to absolve her, on account of her weak intellect. 

Such a statement would not break the seal of the confessional, 
and would not be detrimental to the dead woman. The priest 
whom the lawyer consulted, however, said that he would give no 
answer in court regarding the confessional. He might perhaps 
allege, as his justification for this view, that an affirmative answer 
on the part of the confessor might possibly cedere in odium sacra- 
menti, should the party contesting the validity of the will lose 
their case as a result of his statement. 

They might possibly say : " If the priest does not observe the 
secrecy of the confessional before a court of law, I will not go to 
confession again." Such unjust and malicious remarks might be 
made afterwards regarding the Sacrament of Penance ; but if there 
were no reason to fear any such observations, the priest might 



SEAL OF THE CONFESSIONAL IN COURT 237 

make his statement futa conscientia. The judge would have no 
power to compel him to speak, for he is protected by state laws 
which hold that what is confided to a priest in confession or under 
the seal of secrecy is an inviolable official secret and he can give 
no information with regard to it. — Petrus Dolzer. 



LXIII. COMMUNION ON HOLY SATURDAY 

A parish priest was called up early in the morning on Holy 
Saturday and told that a strange gentleman wanted to go to con- 
fession. He hurried to the church and heard the confession, and 
then, seeing no one else about, prepared to go home again. The 
stranger, however, who was certainly not well acquainted with the 
rubrics of Holy Saturday, went up and asked the priest to give 
him Holy Communion. The latter, being well versed in all the 
rules of the rubric, knew that on Holy Saturday Communion 
might be given only after the High Mass (S. R. C. die 7 Sept., 
1850), or during it, after the celebrant's Communion (S. R. S. die 
22 Mart., 1806, die 23 Sept., 1837), ^^^ then only in places where 
it is customary. 

He drew the stranger's attention to these regulations and said 
that in his parish it was not customary, therefore he could not 
give Communion before ten o'clock. The man replied that he 
was obliged to leave by the next train, and if he could not receive 
Communion at once, it was very doubtful whether he would be 
able to do so at all that Easter. 

The priest soon made up his mind. On the one hand was the 
strict obligation of Easter Communion, that is quoad substantiam 
a divine command, and a general law of the Church, and on the 
other the decisions of the Congregations. He went into the sacristy 
to put on his rochet and stole, in order to give the stranger Com- 
munion, but meanwhile an old woman went up to the Communion 
rail and knelt beside the man. She knew well enough that it 

23S 



COMMUNION ON HOLY SA TURDA Y 239 

was not the custom in that church to give Holy Communion on 
Holy Saturday. What was the priest to do? 

Simply to pass her by and behave as if she were not there 
would be a very delicate matter. People would be apt to think that 
the priest was willing to give Communion to the elegant stranger 
but not to the poor old woman. It would not do to admonish 
her, for both the place and the occasion were much too sacred. 
To give an explanation to the people who might be present and to 
the old woman, to draw their attention to the rules of the Church, 
and to state the reasons urged by the stranger in support of his 
request for Holy Communion, — all this would be a quite unusual 
proceeding, and not one to be recommended. 

We must of course respect the decisions of the Sacred Congre- 
gation of Rites, but like any other laws they may per epikiam lose 
their binding force. The reasons enumerated above, to which one 
or two might be added, make an epikia at least probable. 

The priest ought therefore to give Holy Communion to the 
woman, but take care to give subsequently a thorough explanation 
so as to avoid a similar occurrence in the future. 



LXIV. CONFESSIONS OF THE CLERGY 

Two points seem to us very important, if matters are to be im- 
proved, vi:s., the place where the confession is made, and frankness 
on the part of the penitent. 

Let us consider first the need of frankness. Confidence begets 
confidence, and what comes from the heart goes to the heart, and 
calls forth the right sentiments and the right words. It is not 
easy for every one to speak frankly to another, even to a confessor. 
We all like to keep our innermost thoughts secret, and to confess 
them frankly is more difficult to one who is otherwise on terms 
of friendly intimacy with his confessor. Nevertheless he must 
do so, if both confessor and penitent are to do their parts success- 
fully and to their own satisfaction. We require frankness of our 
penitents. What can we find to say to a person who always 
accuses himself of trifles that are as a rule things which are 
scarcely matter for the Sacrament? Can we rouse him to the pur- 
suit of virtue ? This is often a difficult task if he lives an ordinary 
life, doing nothing particularly bad or particularly good. A priest 
is in a similar case who always accuses himself of having said 
his prayers without devotion, of having committed small faults in 
the administration of the Sacraments, and of having given way to 
vain thoughts, but never mentions such things as envy of his con- 
fratres, neglect of important duties belonging to his position, 
such as carelessness about study, indifference to his schools and 
teachers, want of zeal in instructing his people, etc. A confessor, 
if he felt that he was being treated with confidence, would often 
find it possible to single out some point as a subject for admonition. 

240 



CONFESSIONS OF THE CLERGY 241 

I do not mean to imply that priests as a rule make bad prepara- 
tion for confession, but that by force of habit they are apt to 
make mistakes and omissions, which they almost overlook, if they 
are not accustomed to be frank with their confessor. 

If a priest is in all important matters a faithful servant and an 
honest steward, — and this is generally the case, — there are, still many 
ways in which he may attain greater perfection. Some one per- 
haps feels in his heart a real desire to practise some virtue or to 
impose upon himself some mortification; why does he not speak 
of this desire to his best friend and counselor in the confessional ? 
It would give the confessor an opportunity for giving useful ad- 
vice. Confession should be not only a means of purification, it 
should be in the highest degree a means of sanctification. I must 
admit that it is not easy to be frank. The difficulty was felt even 
by St. Teresa. 

Frankness is essential for one who really strives to follow Christ, 
as it is no easy matter to guide oneself to perfection. Man must 
be guided by man. We often say this to others, and they may 
retort : " Physician, heal thyself ; do thyself what thou dost coun- 
sel others to do." Imagine a physician who would write a pre- 
scription after scarcely seeing the patient. If he is to treat him 
successfully, he must begin by making an exact diagnosis of his 
case, and asking the sick man to explain cause and symptoms of 
his malady. A confessor can do a great deal to encourage a 
confrater who seems reserved, and to help him to make not only 
a good confession, but one that will be really helpful to him. All 
the banal and meaningless phrases will then fall away of their 
own accord; they are things to which the penitent pays hardly 
any attention. 

If we are to promote frankness and give an opportunity for 



242 THE CASUIST— VOL. IV. 

instruction, encouragement, and admonition, we must be careful 
about the place where the confession is made. 

A young priest told me lately how he and his friend managed. 
They lived in a large town with a very mixed population. Every 
three or four weeks they went to the priest of another church, 
and he generally guessed what they came for, and went into an 
adjoining room. First one went in and made his confession, 
and then the other. There were no admonitions, corrections, or 
instructions at all. Immediately after their confessions, the con- 
fessor called to his servant to bring refreshments, and a com- 
fortable gossip followed the brief confession. 

It is not a good plan to make one's confession in the priest's 
room ; it is far better to make it in the church or sacristy. What 
does it matter if there are other people in the church? There 
is no harm in their seeing priests go to confession. Priests are 
frail mortals like themselves, and to see them confessing their 
sins and shortcomings to God's representative tends to edifica- 
tion. If any one objects to being seen, let him choose the sacristy. 
In the seminary all of us, alumni as well as young priests, had 
to go to confession every week at the same time and place as 
other people. One or two objected to it, but it had to be done, 
and certainly the plan had its advantages. 

Many priests make it a rule to spend some time in silent recol- 
lection before the tabernacle, and then to go home, without enter- 
ing the confessor's house. This can easily be done in a town 
or village where there are several churches and priests. Others 
make their thanksgiving in the church and then visit their friend 
and confessor. There can be no harm in this, especially if they 
have come some considerable distance, and need refreshment for 
soul and body. 



CONFESSIONS OF THE CLERGY 243 

In a time like the present, when shallowness and worldliness 
prevail, we priests must strive above all things to be " good salt." 
A good confession on the part of a priest will certainly help the 
salt to retain its savor. 



LXV. WHEN DOES CONTRITION SUFFICE AD 
SACRA INSTEAD OF CONFESSION? 

Tullius, a priest, is often troubled by conscientious doubts and 
regrets having no confrater to whom he could make a confession 
before each celebration or administration of the Sacraments, when 
he is tormented by scruples. What advice should a careful con- 
fessor give him? 

(i) As long as he is not morally certain that he is guilty of 
mortal sin, contrition alone, without the purpose of confession, 
suffices, even to allow him to say Mass. 

(2) If he is only somewhat doubtful, he is not even strictly 
bound to make an act of contrition. 

(3) If he doubts whether, in spite of earnest effort, he has 
succeeded in making a good act of contrition, he must not disturb 
himself. Contritio existimata, in conjunction with the reception 
of the Holy Sacrament, justifies him, and no sacred function 
would be a formal act of sacrilege, since he had a certitudo con- 
jecturalis (which suffices) regarding the recovery of the state 
of grace that possibly he had lost. 

(4) For administration of all the Sacraments contritio saltern 
existimata would be sufficient, even if there were a copia confes- 
sarii and his mortale were certain. 

(5) No mortal sin is involved in discharging all the duties of 
a priest even in mortali, with the exception of celebration and 
administration of the Sacraments. There is a divergence of opin- 
ions regarding the things that involve a venial sin; for instance, 

244 



WHEN DOES CONTRITION SUFFICE AD SACRA ? 245 

recitation of the Divine Office, private bestowal of the priestly 
blessing, especially sine paramentis. A priest certainly does not 
sin grievously by performing the marriage service in this 
condition. 

(6) It is not even a venial sin for a priest in a state of mortal 
sin to administer the Sacraments, such as baptism and Viaticum, 
in cases of urgent need, where there is no time for him to make 
an act of contrition. An opinion to the contrary cannot be 
maintained. 

(7) It is regarded by St. Alphonsus, Gury, and Marc a griev- 
ous sin for a priest in mortali to give Holy Communion, but Lugo 
and others argue with great probability that it is only a venial 
sin, and we need not hesitate to follow them. A mere tractatio 
Sanctissimi, even immediata, is held by very many strict authori- 
ties to be veniale, and so there seems no reason why this should 
not be extended to the administration of Holy Communion. The 
administration of the other Sacraments in mortali is, strictly speak- 
ing, a grievous sin only because they are produced in mortali at 
the moment of their administration, but in the case of the 
Eucharist the transfiguration must be distinguished from the mere 
distribution. 

(8) A celebrant should go to confession before saying Mass, 
if he is morally certain of having committed mortal sin. This, 
like the analogous rule requiring the laity to go to confession 
before communicating, is, according to the more correct view, 
not merely an ecclesiastical but a divine command. Only 
reasons of urgent necessity, such as confectio viatici, infamia, 
scandalum, sacrum die de praecepto, si sacerdos ad id tenetur, can 
justify him in celebrating with contritio {saltern existimata) 
where there is no copia confessarii. If a priest is not bound zn 



246 TEE CASUIST— VOL. IV. 

muneris to say Mass, only the fear of infamia in case he omits 
to say it can justify his doing so; mere admiratio is no excuse, 
but it is almost invariably connected with infamia, sinistra locutio, 
even on ordinary days. Marc is right in not regarding paupertas 
sacerdotis as a sufficient excuse, unless " valde gravis " {Inst, 
mor., A, II. p. 102, m 1550 in ed. XIII.). The fact of the ex- 
istence of several fundata is not an excuse. If the priest, after 
beginning Mass, remembers some grievous sin committed since 
his last confession, it will scarcely ever be possible for him in 
praxi to break off before the consecration, or to make a confes- 
sion to one of the priests who may be present, although, should 
exceptional circumstances render this feasible, it would be his 
duty to do so (cf. the Mass rubrics). 

The presence of only a sacerdos juvenis affinis is not to be 
interpreted as equivalent to a want of copia confessarii, and there- 
fore the priest in question is not excused on this ground from the 
obligation of confession. Whether an excuse is afforded by vere- 
cundia gravis, unconnected with the confession of a mortal sin 
and due to purely external causes, is a disputed point. Such 
verecundia might exist if an uncle had to confess to his nephew 
(cf. Noldin, Th. mor., III. no. 141). The more lenient view is 
probably correct. A similar case would occur if the only priest 
within reach were intoxicated, or very unwilling to hear his 
confrater's confession, or on such bad terms with him that it 
would be scarcely possible to insist upon confession, or if the 
penitent, by the very fact of going to confession to him (assum- 
ing that he could not do so secretly), would expose himself to 
infamia. 

A confessor asked whether a priest who had sinned grievously 
could receive absolution, when he could not, at his confession, 



WHEN DOES CONTRITION SUFFICE AD SACRA ? 247 

resolve firmly, in case of a relapsiis, to confess to the only priest 
within his reach before celebrating Mass. The Penitentiary an- 
swered: " Dilata," thus probably indirectly admitting that ex- 
ceptional reasons justifying his action might possibly occur. 

(9) If absolute necessity forces Tullius to celebrate without 
confession, he is bound by the rules of the Council of Trent to 
supply the omission as soon as possible. This is generally taken 
to mean within three days. If he wishes to celebrate Mass again 
on the following day, he must not of course wait three days, but 
must go to confession before his next celebration. If in neces- 
sitate he has celebrated without contrition, St. Alphonsus and 
Marc consider him bound to go to confession as soon as he pos- 
sibly can ; others with more reason think this unnecessary, as the 
object of the command has been to a great extent frustrated. 
If he has said Mass in spite of there being no absolute necessity 
for his doing so, and so has plainly acted sacrilegiously, accord- 
ing to the Council of Trent, he is not positively bound to go to 
confession at once, provided he does not mean to celebrate Mass 
again. 

(10) This command does not apply in analogous cases to lay- 
men, who in case of necessity have communicated with or with- 
out contrition: they might, as far as they are concerned, wait 
until their next Easter confession, — probabilius ; the rule of the 
Council of Trent applies only to priests who wish to say Mass. 

(11) Finally, it is a matter of course that Tullius must not 
omit to say Mass because of sins that he has forgotten to confess. 
It depends upon the state of his conscience whether the rules laid 
down for scrupulous persons are applicable to him. 

(12) It may further be pointed out that the rubrics in the 
missal forbid a priest " ad judicium confessarii " to say Mass on 



248 THE CASUIST—VOL. IV. 

the day after committing certain sins that lead to a polhitio graviter 
culpabilis, such as would result ex niniia crapula, and the same 
would naturally apply to a copula. A transgression of this rule, 
without a dispensation from the confessor, would be only a venial 
sin, and in case of necessity permissible. What has been said 
may help Tullius to order the affairs of his conscience. 



LXVL A NEW OPERATION IN CHILDBIRTH 

The means employed hitherto to overcome difficulties in child- 
birth, especially in cases of contraction of the pelvis, have 
been : prevention of conception, abortion, induced premature birth, 
Csesarean section, craniotomy, perforation, or cephalotripsy. 
Catholic moral teachers have always taken a decided attitude 
with regard to these proceedings. They have condemned all 
methods of preventing conception. Only under very difficult cir- 
cumstances may "facultative sterility" be advisable (Capellmann, 
5. Poenit., i6 June, 1880. Cf. Lehmkuhl, II. n. 851 ; Noldin, de 
sexto praecepto, n. 69; Goepfert, M. Th., III. n. 278). Abortion, 
the artificially produced expulsion of the foetus at a time when 
it is not yet capable of independent existence, is strictly forbidden. 
Still more strictly is it forbidden to use any of the operations that 
directly cause the child's death, such as perforation, craniotomy, 
or cephalotripsy. Medical men are beginning to see that these 
operations are unjustifiable, although they do not think that they 
can altogether give up performing them. According to the teach- 
ing of Catholic moralists it is permissible to bring about a pre- 
mature delivery at a time when the child is capable of independent 
existence, though it be weak when bom. The Csesarean section 
is also allowed, except in cases where it would be of such danger 
to the mother as to be practically equivalent to killing her. 
Modem surgery and the use of antiseptics have made this opera- 
tion less dangerous than it used to be, if performed in good time. 

Quite recently there has been performed another operation which 
249 



2SO THE CASUIST— VOL. IV. 

seems likely to be successful, vis., hebosfeotomy. The bone of the 
pelvis is cut through at the os pubis, so that the pelvis is enlarged 
and a normal birth can take place. The operation does not in- 
volve any opening of the womb, but is performed by means of 
a very fine saw, resembling a needle, and it does not cause any 
very serious injury to the mother, so that no special danger or 
disastrous results follow it. It seems particularly useful in cases 
where it is impossible to induce a premature birth, or when the 
right time for doing so has passed. Surgeons consider that the 
operation can be performed privately, and that there is no need 
to transport a patient to a public operating room. We may there- 
fore hope that it will result in saving the life of many children, 
who would otherwise perish at their birth. If my hypothesis is 
correct, I see no objection, from the point of view of Catholic 
morals, to the performance of this operation. — Dr. Goepfert. 



LXVII. SCRUPULOSITY 

A young man of about thirty came to a confessor and confessed, 
with every sign of contrition, many grievous sins, especially many 
very serious ones contra VI. The confessor heard him patiently, 
asked the necessary questions, warned and admonished him 
suaviter, pointed out the consequences to body and soul, and then 
absolved and dismissed him. Some weeks later the penitent re- 
turned to the confessional and thenceforth came frequently, show- 
ing himself to be completely changed. The priest's exhortations 
had sunk deep into his 'heart, and the grace of God worked a 
miraculous conversion. Yet at every confession he said : " Father, 
whenever I think of my past life, I am filled with fear; I never 
have a happy hour, I have no peace at all." Quid respondendum? 

If the confessor is satisfied that his penitent has confessed all 
the formal mortal sins that he remembered, after a careful ex- 
amination of conscience, — if there is moral certainty de validitate 
of his previous confessions, and if any that were not valid have 
been made good, he should begin by telling the penitent that his 
disturbed state is the work of the devil. Our adversary does all 
in his power to drag a soul that he considered his own back from 
the right path, and in order to discourage a poor mortal, and 
shatter his confidence in God, he has recourse to disturbance and 
anxiety of mind, and tortures him with doubts as to God's mercy. 
The confessor ought to urge his penitent to pray earnestly, and 
he should strive to strengthen his confidence in God. 

None of us, not even the most pious priest, loiows utrum amore 
251 



252 THE CASUIST— VOL. IV. 

an odio dignus sit {Eccles. ix, i), and even the Apostle of the 
Gentiles had to acknowledge : " Nihil mihi conscius svni, sed non 
in hoc justificatus sum: qui autem judicat me, Dominus est " 
(i Cor. iv, 4). It is actually a dogma of our holy religion, that 
no one knows with certainty that he is justified (Trid. sess., VI. 
cap. 9, in Denzinger, n. 684). Therefore we must be satisfied 
with more or less moral certainty, which varies in degree accord- 
ing to our power of ascertaining whether we have complied with 
all the requirements and conditions imposed by God. We have 
much reason to thank Him for this incertitudo ; it preserves us 
from carelessness and reckless presumption, and sets a barrier to 
our self-confidence and boastful self-complacency. 

After a penitent has done his best to obtain reconciliation with 
God, he should set aside all disquieting thoughts and look with 
confidence to the future. 

To elucidate the point under discussion as far as possible, I 
may add that, in making the preceding statements, I have had in 
view a sinner who has committed unusually grievous sins during 
a period of many years, and now, in spite of having confessed 
them, enjoys no peace of mind. If he is incessantly troubled by 
fears ob confessiones peractas, and questions their validity, or if 
he is in constant dread of sinning, the regulae pro scrupolosis 
of course hold good for his confessor. — Prof. Gspann. 



LXVIII. METUS REVERENTIALIS AS IMPEDIMENT 

Eva, a good, pious young girl, had been brought up by her 
uncle, who practically forced her to marry Csesar. She was utterly 
averse to the marriage, and even declared in confession that she 
agreed to it against her will, not daring to thwart her uncle. The 
wedding took place, and in due time a child was bom. From the 
wedding-day onwards Eva continued to be unhappy, and in course 
of time she refused her husband the dehitiim, because she had 
inwardly never consented to the marriage, and persisted in refusing 
her consent; moreover her confessor regarded her marriage as 
invalid. In order, as she thought, to make things easier for her- 
self, she took a vow of chastity, and lived with her husband as his 
sister. He is, however, in danger of incontinence; and the ques- 
tion arises whether Eva, in spite of her strong repugnance, is bound 
now at any rate to consent to her marriage with Csesar, in order 
to avert this periculum conjugisf 

In a theological periodical of wide circulation in Italy, this 
question received merely " Yes " in reply. The Roman weekly, 
" // Corrispondente del Clero," was not satisfied with this decision, 
and commented unfavorably upon it. The first point chosen for 
criticism was that the journal in question laid down too decidedly 
that " metus gravis dirimit matrimonium jure nafiirali et ecclesi- 
astic o." The Corrispondente declared that the theory that met us 
gravis could destroy a marriage also with regard to the natural 
law, is viewed by the best authorities merely as probabilior. 
Hence Mansella, in his work " de impedimentis" simply says: 

253 



254 TEE CASUIST- VOL. IV. 

" ejusmodi impedimentum jure quidem positivo Ecclesiae matri- 
monimn dirimit; sed probabilius etiam jure naturali irritum facit." 
As a reason for the greater probability he says that metus, quan- 
tumvis gravis, libertatem non tollit, nisi quandoqiie rationis fi:iiferat 
exercitium. Gury and others make similar statements. 

The Corrispondente is still less satisfied with the following re- 
mark in the mentioned paper : " Solus timor reverentialis erga 
parentes, avos, dominos, tutores, etc. non satis est ad irritandum 
matrimonium nisi cum additur timer gravis mali. If, says the Cor- 
rispondente, these words only mean that the timer reverentialis 
must be gravis, there is no objection to them ; but they seem rather 
to mean that there must necessarily be some other metus besides, 
or, at least, that the timer reverentialis could not be gravis to such 
a degree as to invalidate the marriage ; and this is not true. On 
the contrary, it is precisely the timer reverentialis that may easily 
be gravis, especially in the case of a timid girl, unaccustomed 
to oppose her fosterfather. The famous Schmalzgruber teaches : 
invalidum esse matrimonium . . . contractum a virgine cum ju- 
vene, quern ilia aversabatur, ex mera reverentia in parentes, cum 
indignationis, exprebrationis, dure tractationis et similium incom- 
medorum veresimili existimatiene conjtmcta. We see from this 
that reverentialis timer can much more readily be regarded as 
gravis than ordinary fear. 

After discussing these preliminary matters, the Corrispondente 
proceeds to answer the question. The writer believes that the other 
paper erred on the side of severity in the following passage : " Eva 
was, strictly speaking, not forced to marry, therefore she ought 
to be forced to consent." In stating the case, she is said to have 
been " practically forced," so her uncle must have brought some 
kind of compulsion to bear upon her, and she felt herself con- 



MEWS REVERENTIALIS AS IMPEDIMENT 255 

strained to comply with his wishes. From her childhood she had 
been in the habit of obeying him, she was afraid of him, and could 
not make up her mind to refuse, for the first time perhaps, to do 
his bidding. She made no secret of her aversion to her future 
husband, even in the confessional, but her fear made her disregard 
the voice of her own conscience and yield to her uncle's pressure, 
so that she apparently consented to the marriage and lived tanquam 
uxor, though always with inward repugnance. When she grew 
older and found that even her love for her children did not 
enable her to overcome her dislike of her husband, she at last 
spoke frankly to him and refused, ut supra; and in order to have 
more strength, or a better reason for persisting in her refusal, she 
took a temporary vow of chastity. According to our opinion the 
confessor ought to point out to her the sins her weakness has led 
her to commit, so that she may recognize the dangerous state of 
her soul. He ought also to draw her attention to the unpleasant 
position of her husband and of her innocent children, and do his 
utmost to induce her to overcome her aversion ; in short, he should 
use every means of persuasion, but we certainly cannot consider 
it right for him to force her, i. e. to lay upon her a solemn duty 
to consent to such a marriage. We are much afraid that she, hav- 
ing already suffered so much in consequence of her weakness, will 
only suffer far more in consequence of a demand on the part of 
her confessor that is too hard for her to comply with. 

Finally the C orris pondente del Clero considers the last reason 
given in the other paper, viz., Eva's vow of chastity, to be of no 
importance and no obstacle to her marriage, nam vovit de re non 
propria. Any reasonable person would certainly agree that her 
circumstances are such that a dispensation from this vow ought 
to be granted her, but it seems at least very doubtful whether she 



256 THE CASUIST— VOL. IV. 

has made a vow de re non propria. It is admitted that the mar- 
riage is not vaHd; what right could such a marriage give to the 
reputed husband to control his wife's freedom of action ? 

To sum up: Taking into account the scandal to which the dis- 
solution of this marriage would give rise, and the position in 
which the husband and the children would be placed, we are of 
opinion that the confessor ought to use every means in his power 
to persuade Eva to give her consent to the marriage, but he must 
not compel her to do so. The Corrispondente concludes by saying 
that " this is only our opinion, which we desired to state in order 
to have it corrected, should it be erroneous." 



LXIX. A PROTESTANT GODMOTHER 

This is a case of a mixed marriage. The father is a Protestant 
who has hitherto kept his promise and has had his children bap- 
tized CathoHcs. When the youngest child was brought to be 
baptized, the Catholic godmother was prevented from being pres- 
ent, and so the father proposed that his own mother, a Protestant, 
should take her place. The priest objected to this arrangement, 
and so the child's father had it baptized by the Protestant minis- 
ter. Did the priest act rightly? 

Answer. — We must notice, in the first place, that the Protestant 
husband could not simply nominate his mother to represent the 
Catholic godmother; only the Catholic godmother herself could 
appoint a representative. 

Assuming that the Catholic godmother had agreed to the pro- 
posal, and had appointed the child's Protestant grandmother to 
represent her and act on her behalf at the baptismal ceremony, 
the question arises, whether the Catholic priest was right in re- 
fusing to allow a Protestant to represent a Catholic. 

If it had been proposed to have a Protestant godmother, we 
could settle the matter by reference to certain answers given by 
the Sacred Office on May 3, 1893, and June 2y, 1900, to the effect 
that Protestants are not permitted to be godparents, and rather 
than accept them, it is better to administer baptism without god- 
parents. According to an instruction issued in 1723 : " A Catholic 
priest ought not to hesitate to reject non-Catholic godparents, 
because otherwise the baptism would be Protestant or schismati- 
cal in its administration." 

257 



258 THE CASUIST—VOL. IV. 

With these decisions of the Sacred Office before us, it is diffi- 
cult to see how to have a non~Cathohc godparent could ever be 
advisable, though we ought not to conclude that under no possible 
circumstances there could be an exception and a reasonable ex- 
cuse. But in the case under discussion there is no question of a 
non-Catholic godparent, but simply of the representative of a 
Catholic godmother. We are not justified in applying what is true 
of a godparent to his representative. Hence the Catholic priest's 
action must decidedly be condemned, especially if he could foresee 
its disastrous results; for the child, baptized a Protestant, was 
lost to the Church, and so would probably be any further children 
born of that mixed marriage. (Cf. Lehmkuhl, Casus conscientiae, 
II, cas. 24.) 



I 



LXX. MARRIAGE OF A WOMAN PREGNANT BY 
ANOTHER MAN 

A country girl, named Laura, enjoyed an excellent reputation, 
and her uncle, eighty years of age, had assigned a considerable 
legacy to her in his will. Unhappily she had lately been seduced 
by a married man, who was regarded as very religious and most 
respectable. Finding herself pregnant by him, she resolved in 
her despair to save her honor, and secure her inheritance, by 
means of abortion. At that moment a chance of escape presented 
itself. A young man, named Norbert, having no suspicion of 
what had happened, offered to marry her, and wished their mar- 
riage to take place immediately. If Laura told him the truth, he 
would certainly withdraw his offer, and she would be left in her 
desperate plight. She therefore hurried to the neighboring town 
to consult Father Philip, who did not know her. She told him 
the whole story and asked whether in this case she might conceal 
her pregnancy and marry Norbert. 

Question. — What should Father Philip reply? 

The pregnancy of his bride by another man is undoubtedly a 
defect which not only renders the marriage minus appetibile to 
the bridegroom (to use the language of theologians), but is ac- 
tually prejudicial to him; is, in fact, a defectus nocivus. St. 
Alphonsus says : " Sicut peccat contra justitiam, qui alteri vendit 
merces noxias credenti bonas, ita a fortiori, qui cum pernicioso 
defectu viilt matrimonium contrahere " (1. VL n. 864). A woman 
pregnant by another man by her marriage forces her husband 
against his will to receive some one else's child and bring it up 

259 



26o THE CASUIST— VOL. IV. 

as his own. She causes his legitimate children to share their in- 
heritance involuntarily with one who has no right to it. More- 
over, she exposes her husband, her children, and herself to all the 
miseries of an unhappy marriage, for it is quite possible that he 
may eventually find out the trick that she has played him. In 
some states he might even obtain a dissolution of his marriage in 
the secular court, in defiance of the law of God and the Church, 
Therefore, as a rule, all authors hold that under such circumstances 
the woman is bound sub gravi either to refrain from marriage 
or to reveal her condition to her future husband. Father Philip 
explained all this fully to Laura, but she replied that marriage 
was the only way for her to save her reputation and her inheri- 
tance, to keep secret the sin committed by the partner in her guilt, 
to preserve his family life, and to protect the whole parish from 
public scandal. As to the dangers that the priest pointed out to 
her, she firmly believed that, under the existing circumstances, 
her husband would never find out what she had done, and that 
she would succeed in making good to him and his legitimate chil- 
dren any loss that they might incur out of her own means. 

Taking all these circumstances into consideration. Father Philip 
thought that he could discover the following reasons for acceding 
to Laura's request. 

(i) The prohibition of marriage In such a case is based upon 
the danger of causing the injuries enumerated above; but, in 
Laura's case, it seems that this danger is not great, and therefore 
there is no need to insist upon the prohibition. Even Lehmkuhl 
says, in his Casus conscientiae, IL n. 845, in discussing a similar 
case : " Quodsi puella ante matrimonium occulte pareret prolique 
bene consuleret, ifa tamen, ut ipsius maternitas maneret oninino 
tecta, de graviditate non aliter judicandum est, ac de fornicatione 



MARRIAGE OF A WOMAN PREGNANT BY ANOTHER MAN 261 

sine sequelis." St. Alphonsus says (1. VI. n. 865) of such a 
woman that some authorities would permit her to give an evasive 
answer, should her husband question her on this point, or even to 
conceal her fault with a restrictio non pure mentalis, as in all 
probability it will never do him any harm at all. 

(2) It can scarcely be a sin on Laura's part if, by concealing 
the fact of her pregnancy when she marries, she does what is not 
forbidden in se, sed solum propter periculum damni proximi, and 
is moreover the only means of averting evils of a much worse 
kind. Gury takes this view in his Casus conscientiae, 11. n. 871, 
with regard to a similar case : " excipiunt plures; si instantibus 
nuptiis, puella aliter quam per matrimonium famae consulere nan 
posset, quia tunc non teneretur tantum famae detrimentum subire 
ad damnum temporale sponsi avertendum." 

(3) The chief reason, however, for not forbidding Laura's 
marriage seemed to Father Philip to be the extrema necessitas of 
the child that she had conceived; for, if she could not marry at 
once, she was in the greatest danger of yielding to the temptation 
to procure abortion. The child was therefore in extreme spiritual 
and bodily necessitas, and under existing circumstances Norbert 
alone could save it. In such a case any one would be strictly 
bound to even greater sacrifice than Norbert would make by this 
marriage; therefore he could not be rationabiliter invitus, if such 
a sacrifice were imposed upon him by Father Philip's decision. 
The latter, after he had well considered all the arguments in her 
favor, could not make up his mind either to prohibit the marriage 
or to force Laura to reveal her condition to Norbert. He simply 
admonished her to do her best to avert the dangers he had men- 
tioned from her husband and the family. — Johann Schwienbacher, 
C.SS.R. 



LXXI. PAROCHIAL MASS OR SICK CALL? 

Sempronius, a parish priest, without assistant was just starting 
from his house one Sunday to say the parochial Mass, when he 
received a message asking him to go at once to administer the last 
Sacraments to a certain Paula, who had been ill for some time and 
had suddenly had a stroke. The congregation had assembled to 
hear Mass, and the sick woman's house was so far away that the 
people would have had to wait a very long time before Sempronius 
could return, if he went to her before saying Mass. A sick call 
could not have come at a more inconvenient moment. One fortu- 
nate accident seemed to offer him a way out of the difficulty in 
which his conflicting duties placed him. He had been to see Paula 
five or six days previously and she had then received Holy 
Communion ex devotionc, Sempronius now thought that this 
Communion might serve temporarily as her Viaticum, so he said a 
low Mass in the church and then set out at once to administer the 
Viaticum, ritu praescripto, to the sick person in danger of death, or 
at least Extreme Unction, if it was no longer possible for her to 
receive any other Sacrament. However he was too late; she had 
died not long before his arrival. 

Two questions are asked regarding this occurrence. 

(i) Should Sempronius have allowed the Holy Communion 
that Paula had received five or six days before to be her Viaticum ? 

(2) Was he right under the given circumstances in deferring the 
administration of the last Sacraments until the end of Mass? 
Ought he to have gone at once? 

262 



PAROCHIAL MASS OR SICK CALL 263 

Ad. I, Various answers have been given to this question. Schiich 
says (Handbuch d. Pastoral-Theol, loth Ed. p. 700) : " If a person 
has communicated ex devotione one or two days previously, he 
may receive the Viaticum, should danger of death occur, but is not 
bound to do so, if the danger (as in the case under consideration) 
is a consequence of the disease previously existing, /. e., at the time 
when he communicated ex devotione" Lehmkuhl {Theol. mor., 
II. n. 140, 4) and Noldin {Siimma Theol. mor., III. n. 143) even 
consider that no obligation, or no certain obligation, to receive the 
Viaticum exists, when a person has communicated ex devotione 
within a week or " circiter una ante hebdomada" " cum praecepto 
jam satisfecerit, praesertim si pericidum ex morbo invaluit, quia 
moraliter turn pericidum jam instabat vel, ut censet Lugo, quia 
sufficit communicare in fine vitae seu paido ante mortem " (Noldin, 
/. c.). 

According to these authors Paula was not strictly required to 
receive the Viaticum, and consequently Sempronius might allow 
the Communion she received shortly before to reckon as her Viati- 
cum, although of course he was bound to administer the last Sacra- 
ments if Paula asked for them. 

Ad. 2. We may assume that Paula, knowing her dangerous 
condition, in spite of having already received Holy Communion, 
certainly expressed a desire for the Viaticum, and therefore Sem- 
pronius was bound to administer it. If he did not think it neces- 
sary to do so at once, he cannot be accused of neglecting what 
was his real duty as priest in charge of souls, since he might ratio na- 
biliier asume that the sick woman had no grievous sin on her 
conscience, because she had so recently received the Sacraments. 
Moreover, a considerable postponement of the parochial J\Iass could 
not fail to cause incommodnm. If Paula had not communicated 



264 THE CASUIST— VOL. IV. 

very recently, Sempronius ought of course to have taken her the 
Viaticum at once, and should have put off saying Mass, and even 
should have interrupted it, if he were already saying it. The same 
rule would apply, if he only could have administered Extreme Unc- 
tion, if the dying person was no longer able to receive the Sacra- 
ment of penance and the Viaticum. If this had been the case, and 
Paula had been in statu peccati mortalis, the administration of 
Extreme Unction would have been a duty binding siih gravi, and 
it would have admitted of no delay, since in hoc casu the dying 
woman's salvation might have depended solely upon her reception 
of this Sacrament in good time. Under other circumstances, ac- 
cording to the sententia communior ( St. Alphonsus, 1. VI. n. 733 ; 
Lehmkuhl, Theol. mor., II. n. 578), there is no obligation sub gravi 
to receive Extreme Unction, and there was none in Paula's case, 
partly because, as we have seen in considering question i, the Com- 
munion received a few days previously might be regarded as her 
Viaticum, and partly because there was no reason for fearing that 
she was in a state of mortal sin. 

If Sempronius had gone to administer the last Sacraments, as 
soon as the message reached him, Paula might at least have re- 
ceived Extreme Unction, even if it had been impossible to give her 
the Viaticum. Under the given circumstances, however, it can- 
not be maintained that she was strictly bound to receive either the 
Viaticum or Extreme Unction, and any considerable postponement 
of the parochial Mass would certainly have caused serioUs in- 
commodum to the people intending to assist at it. Hence we 
cannot blame the parish priest for not going to administer the 
Sacraments to Paula until after he had said Mass. The case 
would have been different if Paula had lived near the church, so 
that there need not have been a long postponement of Mass, or if 



PAROCHIAL MASS OR SICK CA LL 265 

Sempronius had held the usual and longer Sunday service in spite 
of being summoned to go to her. In either of these cases he 
would at least have to submit to the reproach of having acted 
injudiciously. 



LXXII. REVALIDATION OF AN INVALID 
MARRIAGE 

Rufina apostatized from the Catholic faith, and becoming a 
Jewess, was married before a Rabbi to a certain Samuel, After 
some time the latter asked for baptism. The priest to whom he 
applied, after obtaining the parish priest's permission, asked and 
received the necessary faculties from the ordinary, vis., leave to 
baptize, authority to reconcile the apostate, and a dispensation from 
publishing the banns of marriage three times. This priest, who 
had no regular care of souls, was asked expressly by the parish 
priest whether he would undertake the whole matter, and answered 
in the affirmative, subject to the parish priest's permission, who 
thereupon said : " That is given." 

On the appointed day the priest awaited in the sacristy the rector, 
who on his arrival exclaimed : " It was not necessary to wait for me. 
Go right ahead," and went away. Being convinced that he thus 
had received all the necessary authorization, the priest baptized 
Samuel (he had previously reconciled Rufina), proceeded to the oath 
of manifestation, and then married them before two witnesses. 
Having completed the ceremony, he was summoned to the rector, 
who addressed him thus : " I hear you married them ! Why, you had 
no delegation for that." The priest was astonished, but said that 
he would recall the couple, to renew their consent. The rector, 
however, answered : " No, let them go now. You could presume 
the delegation to have been granted." " I beg your pardon," said 
the priest, " there is no such thing as a delegafio praesmnta, though 

266 



I 



REVALIDA TION OF AN INVALID MARRIAGE 267 

there might be a tacita, if you had any idea that, in consequence 
of your words, I should perhaps marry the couple, and, in case 
I did so, you were willing to raise no objection." The rector said 
shortly: "Very well." What was to be done? The priest was 
undoubtedly right in his action as well as in his opinion. 

He devised the following way out of the difficulty. He went 
to the Bishop of the diocese, and asked him as parochus ordinarius 
to delegate his powers to him, as a precautionary measure. Then, 
after leaving the married couple in good faith for a short time, he 
took an opportunity later on of making them renew their consent 
conditionally in the presence of two witnesses, under the pretext 
that there had been some mistake in a matter of form. — Honorius 
Rett, O.F.M. 



( 



LXXIII. IS IT POSSIBLE TO HEAR THE MASS OF 
OBLIGATION WHILE MAKING CONFESSION AT 
THE SAME TIME? 

It is a common practise to hear confessions during the early 
Mass on Sundays and on holidays of obligation. It often happens 
that people who go to confession at this time do not think of 
hearing any other Mass, and, especially in the country, it would 
frequently be impossible for them to do so. On ordinary Sundays, 
in the towns also, there are many people, chiefly servants, who 
could hardly find another opportunity for confession than during 
the time when they are hearing their obligatory Mass. It is there- 
fore a question of practical importance whether they obey the 
commandment of the Church requiring us to hear Mass on Sun- 
days and holidays, if they make their confession during this Mass. 
A discussion of the matter would be particularly opportune, be- 
cause several theologians have answered in the negative. 

Answer (i). — In order to elucidate the subject fully, we may 
begin by calling to mind the general principles laid down with 
reference to the positive commandment requiring us to hear Mass 
on Sundays and holidays of obligation. Dr. Joh. Ev. Pruner 
writes : " In order to comply with the command, it is requisite (a) 
to hear a complete Mass said by a priest who is not excommunicated 
. . . (b) to participate with presence of body and soul. We satisfy 
the first requirement if we are immediate witnesses of the sacred 
act performed at the altar, or if we join the congregation and 
observe the acts by which they express their participation in the 

268 



HEARING MASS WHILE MAKING CONFESSION 269 

holy Mass. . . . Presence of the soul demands « that we should 
assist at Mass voluntarie et libere, that is to say, with the intention 
of honoring God and performing a religious act. Simply to be 
present in order to see the church, or from motives of curiosity, 
would not be a religious act, but such is necessary in order to obey 
the commandment; /? that we should assist at Mass with attentio 
externa, i. e., we must set aside any occupation incompatible with 
paying attention to the sacred action, and we must have at least that 
degree of attentio interna without which the act cannot be called a 
humanly free act in the species of religion; in other words we 
must have attention of spirit, so far as to be aware that the 
sacred act, at which we intend to assist in order to practise the 
virtue of religion, is now being accomplished at the altar " {Lehr- 
buch der katholischen Moraltheologie, p. 316, etc.). 

The question under consideration is whether confession is a 
transaction incompatible with hearing Mass, or, in other words, " Is 
the commandment of the Church observed by people who go to 
confession during Mass on Sundays and holidays, but have the 
intention to assist at holy Mass at the same time ? " 

Unless their confession is unusually long, so as to occupy the 
chief part of holy Mass, and unless it is made during the most im- 
portant part of the Mass, there can scarcely be any doubt that they 
fulfil their obligation ; ^ it is not questioned even by theologians 
who have a great tendency to rigorism. 

(2) The case is different, however, where the confession lasts a 
long time, perhaps through the whole of Mass, or the greater part 
of it, and especially if it is going on during the most important 
actions of the Mass. Under such circumstances very many theo- 
logians deny that the duty of hearing Mass has been fulfilled. As 

1 Cf. Goepfert, Moraltheologie, (2d ed.), I. 408, c; Lehmkuhl, Theol mor., I. 538. 



27© THE CASUIST— VOL. IV. 

members of the older school who take this view, we may men- 
tion Suarez, Bonacina, Lugo, Kollet, Natalis, Alexander, An- 
toine, S.J.^ and St. Alphonsus.^ 

Among more recent writers, Dr. Pruner writes as follows on 
the subject: "Confession during Mass cannot be regarded as ful- 
filling the obligation to assist at the Holy Sacrifice, if it absorbs 
the penitent's whole attention for so long that he cannot be said 
to have been present at a complete Mass" (5". Lig., n. 314). 

Gury may also be quoted; in answer to the question: "An 
satisfaciat praecepto, qui tempore missae peccato confiteturf " he 
says : " Negative, saltern si confessio sit prolixa, i. e. si toto tempore 
aut maiori parte missae perduret, quia deest turn attentio interna 
turn etiam externa; qui enim confitetur suas culpas, rei personam 
agit, non vera offerentis sfljcrificium cum sacerdote nee missam 
audire moraliter censetur." ^ 

The question is answered in the negative also by Cardinal Gous- 
set, Paul Palasthy, and Friedhoff. Gousset writes : " It is gen- 
erally assumed that a person satisfies the obligation [to hear Mass] 
if, during the Mass, he examines his conscience with a view to con- 
fession, or reads devoutly some spiritual book, such as the ' Follow- 
ing of Christ,' or says his Office. It is improbable, however, that 
he can (at the same time) hear Mass while making his confession."* 



* Theologia moralis universa, Romae, 1757, pars prima. Tract, de virtute religionis, 
cap. n. quaest. V. resp. 4. 

^ Theologia moralis, lib. III. n. 314 and 315. 

' Compendium Theol. moralis, Ratisbon, 1874, Manz. ed. in Germ., V. p. i, 
n. 346. _ 

* This opinion is expressed rather more decidedly than that of St. Alphonsus 
Liguori, who admits that there are not unimportant grounds for supposing that it is 
possible to hear Mass and go to confession at the same time; but hesitates to pro- 
nounce this view as probable (although he previously considered it so for internal 
reasons), because his modesty prevents him, for external reasons, from contradicting 
the eminent authorities who consider it improbable. 



HEARING MASS WHILE MAKING CONFESSION 27 1 

Friedhoff and Palasthy speak as if it were certain that a person 
cannot go to confession and at the same time fulfil his obligation to 
hear Mass. Both rely upon internal reasons, which St. Alphonsus 
knew perfectly well, and which certainly were familiar to those 
other theologians who, in spite of them, did not feel bound to 
adopt this opinion. These internal reasons, therefore, are not of 
such a nature as to justify the certainty with which Friedhoff and 
Palasthy speak. 

(3) If we ask what the internal reasons are upon which the 
above-mentioned opinion is based, we are told that in order to hear 
Mass we ought to pray; but making a confession, though a 
religious act, is not a prayer; a penitent is enumerating his sins, 
not praying. Confession is, however, undoubtedly an act of wor- 
ship, and very weighty authorities teach that it is enough to hear 
Mass with the intention of worshipping God. This argument 
then seems to prove nothing, as is admitted by St. Alphonsus and 
others, who maintain that a negative answer should be given to 
the question under discussion. They proceed therefore to say: 
Confession is certainly an act of worship, but not one that is com- 
patible with hearing Mass; for the penitent does not act as one 
who sacrifices with the priest, but as one who acknowledges his 
sins : " rei personam agit, non vero offerentis sacrificium cum sacer- 
dote" (Gury). Self-accusation has nothing to do with sacrifice: 
accusatio aiit persona rei non spec tat ad sacrificium; enarratio pec- 
caforum non est res ad sacrificium spectans. The penitent, being 
engaged in enumerating his sins, is so distracted with regard to the 
Mass as hardly to give it a thought; he is absent in spirit, and 
therefore we cannot say in a moral sense that he was present at 
the holy Sacrifice. " Sacras et pias lectiones facerc, e libro vel hrevi- 
ario prccari licet, solum ea. quae mentcm a mi-ssa abstraherent, fa- 



272 THE CASUIST— VOL. IV. 

cere non licet, v. g. confiteri, prof ana legree " (Palasthy) Fried- 
hoff uses similar language. 

(4) Other moralists, amongst them theologians of repute, 
"hand parvi nominis fheologi" (Kenrick, tract. 4, p. 2, n. 12), an- 
swer the question affirmatively. Edmund Voit, S.J.,^ who follows 
Lacroix, writes : " Qui sub Missa per longum tempiis confitetur, 
Missam audit, quia habet intentionem audiendi (uti suppono) ; 
adest cor pore, quia confitetnr in templo; assistit moraliter, quia 
praesens est humano et religioso niodo; sufUcienter potest attendere 
et licet forte actu non attendat, actione tamen pia occupatur et cen- 
setur cum sacrificante et circumstantibus Deo cultum exhibere." — 
It would of course be possible to argue that not every actio pia 
can be regarded as compatible with hearing Mass, otherwise, as 
Cardinal Lugo points out, this would be applicable not only to 
confession, but also to attendance on the sick, etc. The only act of 
worship compatible with hearing Mass is one which has reference 
to the sacrifice. No sound answer can be given to this objection, 
but we must ask whether there is really no reference to the Holy 
Sacrifice of the Mass, when a person does not merely state what 
he has done amiss during a given period, but with contrite heart 
makes his confession to a priest as God's representative, and forms 
good and serious purposes of amendment in the sight of God. 

(5) We cannot possibly adopt the opinion underlying the above- 
mentioned doctrine, viz., that a Catholic confessing his sins to God 
and His representative with contrition, imploring grace and mercy, 
and purposing amendment, in reliance on the grace of Christ, 
whence all our strength proceeds, is accomplishing a religious act 



^ Theologia moralis, Wirceburgi, 1769, pars secunda, n. 480. Cf. Busenbaum, 
Medulla theol mar., lib. III. tract. III. cap. i, dub. III. edit. Monasterii West- 
phaliae, 1659. 



HEARING MASS WHILE MAKING CONFESSION 273 

that has no reference whatever to the Eucharistic sacrifice, and that 
in this respect may be placed on a level with the study of the in- 
scriptions in the church, wilful distractions, or the reading of pro- 
fane books. If we seriously consider the close connection between 
the unbloody renewal of the sacrifice of the Cross and the Sacra- 
ment in which sins committed after baptism are forgiven, we shall 
certainly arrive at the conclusion that a Catholic obeys the positive 
command to hear Mass on Sundays and holidays of obligation, if 
he makes his confession during this obligatory Mass, even though 
it should occupy the greater part of it. Is not the Eucharistic sacri- 
fice Kar iioxriv the sacrifice of reconciliation, and therefore also a 
sacrifice of participation in the grace of justification through the 
Sacrament of penance, which is certainly something more than a 
mere enumeration of sins? 

We are told that a penitent confessing his sins appears as a 
sinner, not as one doing sacrifice, but do I not participate in the 
sacrifice of reconciliation on the altar, when I confess my sins with 
true contrition to Christ in the person of His representative, if I 
do so in the spirit of the penitent thief and with the intention of 
hearing Mass? if I implore mercy and make good resolutions for 
the sake of the most holy Sacrifice ? if I bring my sacrifice of pen- 
ance to unite it with that offered by our Saviour on the altar? If 
once it is admitted that we do nothing incompatible with hearing 
Mass if we confess our sins to God with true contrition, why 
should we not do so in sacramental confession, where it is to Him 
principaliter that we confess them? No one objects to our fixing 
our minds during the whole of Mass upon the Confiteor, Kyrie 
eleison, Agnus Dei, or some other prayer for forgiveness, and 
such a devotion is quite in keeping with hearing Holy Mass. In a 
genuine confession there is the same devotion, in all essentials, and 



274 TEE CASUIST—VOL. IV. 

therefore we believe that the commandment of the Church, requir- 
ing us to hear Mass on Sundays and holidays of obligation, is 
obeyed, if during that Mass a person makes his confession, having 
the intention to hear the Mass at which he is bodily present. 

(6) In our opinion, those who take the contrary view lay far 
too little stress upon the penitent disposition, contrition for the 
sake of Christ, who was an offering for our sins. The sacramental 
confession is the outward expression of this contrition, and by over- 
looking this fact they come to regard confession as an enumeration 
of sins and a conversation with the confessor. Such an impression 
would probably be made upon any one reading the following passage 
in Antoine (/. c.) : "Qui notahili tempore missae confitetur, non 
satisfacit praecepto; nam caret attentione ad missam requisita, 
videlicet attentione ad Deum divinaque mysteria; qualis esse nequit 
in narrandis et investigndis peccafis eorumque circumstantiis et in 
colloquio cum confessario." A similar impression is given by the 
comparison of confession during Mass with wilful distractions 
(Friedhoff), and with reading profane books (Palasthy), al- 
though in each case the comparison is made only by way of illus- 
tration to show the incompatibility of going to confession and 
of hearing Mass, 

Guryi an(j others admit that a person obeys the commandment 
of the Church with regard to hearing Mass, if he spends his time 
during Mass in examining his conscience; and therefore we can- 
not see why the same admission should not be made if any one in 
a spirit of contrition confesses the state of his conscience to the 
representative of Christ. We may ask, with Gobat, " Quis negabit, 
confitentem Christ o peccata sua, missae non satis faceref " When 
we confess to a priest as God's representative, we confess to God 
Himself. 

^ Gury, I.e., n. 347: Saiisfaciuni, qui comcientiani tempore missae disciitiunt, ut 

cDnjlicantiir. 



HEARING MASS WHILE MAKING CONFESSION 275 

(7) We believe, therefore, that there are good internal grounds 
for our opinion ; but what is to be said, if a priest doubts whether 
this view is to be regarded as justifiable? Even in this case it 
would be well to avoid the rigorism of Natalis Alexander, who 
would have a confessor inquire whether any penitent, entering the 
confessional during the last Mass, has already heard Mass, and 
if the answer is in the negative, he thinks the confessor should 
refuse to hear the confession until Mass is over — he might hear it 
then or on some other day. 

St. Alphonsus is far more lenient. Although he thinks that it 
is impossible to go to confession and hear Mass at the same time, 
he sanctions confession during Mass in a case where the penitent 
would otherwise have to remain some time out of the state of grace, 
and he adopts the theory that servants who cannot go to confession 
at another time satisfy the requirements of the Church if they make 
their confession during Holy Mass. The Saint goes so far as to 
quote, without any adverse criticism, an opinion expressed by the 
Jesuit Lacroix, who says that we may even advise servants and 
others, who otherwise could not perhaps go to confession at all, to 
do so during the Mass that they are hearing. " Quodsi confessio 
alioquin esset omittenda, uti saepe fieret ancillis et famulis, suaderi 
potest, ut fiat sub missa, quia voluntas ecclesiae praesumitur esse 
potiiis, ut sic audiatur missa et confessio fiat, quam ut attentius 
audiatur et confessio non fiat." ^ — ^Josef Schweizer. 

^ Lehmkuhl takes the same view, for he writes: "Si quis vera plene ahsorbebaiiir 
in enumerandis peccatis suis per prindpaliorem Misses partem, non videtur quidem 
satisfecisse: verum aliqiiando ex hoc ipso oritur causa a tnissa (alia) audienda exc tisane. 
Nimirum si tempus pro alia missa ncm suppetit, et prain elecfio datur aut omittendi 
confessionem et missam audiendi, aut omitteiidi niissam et instiiuendi confessionem : 
uUimiim titto eligi potest ab eo, qui alias, quum reconciliatione cum Deo indigeat, ali- 
quandiu in statu peccati deberet tnanere (v. St. Alph., n. 332), aut cui nitnis grave esset, 
din a Sacramento poenifentuE alienum manere. .Sic etiam Lacr. i, n. 676." Tlteol. 
moralis, 1901, I. n. 558. 



LXXIV. ARE PREPARATION AND THANKSGIVING 
NECESSARY CONDITIONS FOR DAILY COM- 
MUNION? 

In a recent book on daily Communion three things are said to 
be necessary for a worthy and fruitful reception of Holy Com- 
munion, vk. (i) the state of grace, (2) a right and pious inten- 
tion, (3) a careful preparation and a suitable thanksgiving ac- 
cording to each person's ability, circumstances, and duties. The 
question is asked whether this is correct. 

The Roman decree states expressly : " No one who is in the 
state of grace and who approaches the holy table with a right 
and devout intention can lawfully be hindered therefrom." Else- 
where in the decree, and in other Roman rescripts on this subject, 
these two are the only conditions mentioned as necessary for daily 
Communion. It is easy to see the reason why this is so: the 
object is to decide in what state the soul of the communicant must 
be at the moment of Communion (in ipso actii), in order that he 
may receive it without sin and with good results. Hence the 
first paragraph of the decree mentions these two conditions which 
are requisite in every case: the one is binding under mortal sin, 
the other under at least a venial sin. 

Besides the question stated above, and in close connection with 
it, two more questions may be asked: "What is required for a 
more fruitful reception of daily Communion ? " and " How can 
the reception of daily Communion, under the required conditions, 
be secured practically and permanently ? " 

276 



PREPARATION AND THANKSGIVING 2^^ 

The Congregation of the Council replies to this in the fourth 
paragraph of the decree : " Whereas the Sacraments of the New 
Law, though they take effect ex opere operato, nevertheless pro- 
duce a greater effect in proportion as the dispositions of the 
recipient are better, therefore care is to be taken (curandum est) 
that Holy Communion is preceded by serious preparation, and 
followed by a suitable thanksgiving, according to every one's 
strength, circumstances, and duties." 

In these words there are three things bearing particularly upon 
the question before us: 

(a) The degree of efficacy of Holy Communion, as well as of 
the other Sacraments, depends in the second place upon the opus 
operantis, i. e., upon the cooperation of the recipient. Some 
amount of cooperation, the most essential and indispensable, is 
supplied by the communicant's being in the state of grace and 
having a right intention; but it is obvious that the Church de- 
sires Holy Communion to have its greatest possible effect. Like 
our Lord, she wishes us to have life, and to have it more abun- 
dantly (John X, lo). Therefore she insists upon our receiving 
Holy Communion as frequently as possible, but she is no less 
anxious that by improving our preparation and thanksgiving we 
should derive more benefit from each Communion. She does 
not prescribe in detail the amount of preparation and thanksgiving, 
for in this respect she observes the prudent principle: Pauca 
praecepta generalia de rebus necessariis. The Church considers 
a special preparation and thanksgiving as necessary in order that 
we should derive more fruit from Holy Communion, or even be 
sure of making a worthy and fruitful Communion, since, without 
such special preparation and thanksgiving, the indispensable con- 
ditions also would in time cease to be fulfilled, or there would at 



278 THE CASUIST—VOL. IV. 

least be great danger of the communicant's not having the right 
intention. 

This explains (b) the rule that is likewise a precept : " Curandum 
est ut sedula ad s. Communionem praeparatio antecedat et congrua 
gratiarum actio inde sequatiir. . . ." Let us suppose that the 
Church had here ordered nothing but the state of grace and a 
good intention. Many badly instructed or careless Christians 
would then, as unhappily often happens, receive Holy Communion 
regularly without any kind of special preparation and thanks- 
giving. In consequence of their carelessness and ingratitude they 
would not only fail to receive an increase of grace, but in time 
their want of recollection, zeal, and religious spirit would be apt 
to make them overlook one of the indispensable requirements for 
Holy Communion. In abstracto we can imagine a v/orthy and 
not fruitless Communion, when, beyond the state of grace and the 
pure intention, no special preparation and thanksgiving have been 
made. In concreto, however, as time goes on, such a Communion 
almost ceases to be imaginable, for the pure intention will be de- 
stroyed by positive indifference to all venial sins, etc. 

The authors of pious books, catechisms, etc., must, however, 
keep the practical aspect of the matter in view, according to the 
spirit of the decree, and therefore we must not be surprised if the 
three things necessary for Holy Communion are grouped together 
in the manner stated above. As long as Rome has not issued any 
detailed instructions regarding the sedula praeparatio and the 
congrua gratiarum actio, and the length of time that should usu- 
ally be devoted to them, each Bishop may use his authority to 
decide the matter for his diocese, in harmony with the spirit of 
the decree. 

(c) At the end of the fourth paragraph of the decree, Rome 



PREPARATION AND THANKSGIVING 279 

has given some general directions in the words " according to each 
one's strength, circumstances, and duties." If, for instance, all the 
children who wish to go to Communion every day were required 
to make a particular examination of their conscience and this 
were regarded as a necessary condition, it would seem excessive, 
and not quite in harmony with the decree. Some children may be 
capable of it, but others are not, and it is quite possible for them 
to make a serious preparation without this practice. Moreover, 
in the case of children as well as of adults, " Confessors are to 
be careful not to dissuade any one from frequent and daily Com- 
munion, provided that he is in a state of grace and approaches 
with a right intention." The Church does not require even weekly 
confession from those who communicate daily or almost daily, 
and confessors must be on their guard against asking them to con- 
fess except in case of grievous sin. 

As to the duration of the preparation and thanksgiving, the 
Church leaves us a certain amount of freedom, " according to each 
one's strength, circumstances, and duties." Perhaps a quarter of 
an hour would be a good average time for a regular preparation 
and thanksgiving, and it is very desirable that it should be gener- 
ally adopted. But just as no reasonable person could be shocked 
if a priest, otherwise zealous, had to shorten his preparation for, 
and thanksgiving after. Mass, owing to want of time, or the 
presence of a number of people anxious to go to confession, he 
would indeed be only following the example of St. Francis of 
Sales — so in certain cases a shorter thanksgiving in the church 
suffices when people, who are generally careful, have waited some 
time for Holy Communion, and soon after receiving it have 
to go home to attend to pressing duties. Experience shows that 
their zeal will lead them to make up, on their way home or 



28o TEE CASUIST— VOL. IV. 

when engaged at their work, what they may have omitted in 
church. 

We are told of General de Sonis that, in the midst of his mili- 
tary duties, he felt such a longing for Holy Communion that when 
on march he gladly availed himself of an opportunity, furnished 
by a brief halt, to receive Communion in a village church, and 
after spending a few minutes in fervent thanksgiving, he would 
resume his ride. Of course we must not allow exceptional cir- 
cumstances to become a rule. In dealing with children we have 
to take their age into account, and not insist upon too long a 
preparation and thanksgiving. They ought to regard it as a joy 
to go to Communion, but they lose their devotion if required to 
kneel for a long time. Both the letter and the spirit of the decree 
should lead us to demand only what is absolutely necessary, but 
to counsel souls to strive after ever greater perfection by means 
of frequent and daily Communion, doing our best to inspire them 
with enthusiasm, and not losing sight of the inward promptings 
of grace in each individual. — ^J. Bock, S.J. 



LXXV. CONFESSION BEFORE CELEBRATION 

Peregrinus, a parish priest, invited his nephew Juvenal to spend 
a few days with him. Juvenal had been recently ordained and had 
just been appointed to the cure of souls. He gladly accepted the 
invitation, for he regarded his uncle as his greatest benefactor, 
and owed him a debt for having in many ways shown himself 
a wise friend and coimselor. On the last day before his nephew's 
departure (Saturday), Peregrinus committed a peccatum turpe ex 
fragilitate carnis, and this caused him the greatest distress. 

What was he to do? As parish priest he was well aware of 
the strict command of the Church, requiring him to confess a 
mortal sin before saying Mass ; but it was unspeakably repugnant 
to him to confess such a peccatum turpe to his young nephew, to 
whom he has stood in so close a spiritual relationship. 

As there was a vera necessitas celebrandi on the following Sun- 
day, Peregrinus did not feel himself bound tmder the circum- 
stances to make his confession to Juvenal before celebrating, so 
he contented himself with perfect contrition. Quid ad casiimf 

Answer. — The rule laid down by the Council of Trent (sess. 13, 
c. 7), that mortal sins must be confessed before a priest celebrates 
Mass (Holy Communion), is generally regarded as a lex ecclesi- 
astica, but not as a praeceptum divinum, perhaps in the sense of 
an official explanation of the probatio required by St. Paul ( i Cor. 
xi, 28). A difficulty connected internally and inseparably with the 
fulfilment of such an order certainly forms no ground of excuse, 
e. g., no kind of shame, however great, justifies a breach of the 

281 



282 THE CASUIST— VOL. IV. 

law; otherwise no priest would be bound to confess any particu- 
larly shameful sin. It is, however, possible for a verecundia ex- 
traordinaria not to have its origin so much in confession of the 
sin as in some external circumstance, not essentially connected with 
the confession, but conditioned by some peculiar chain of events. 
This is true in the case under consideration. We have present in 
it the near relationship (uncle, nephew), and the particular bond 
of affection between Peregrinus and Juvenal (the former has been 
the benefactor, friend, and spiritual adviser). These circum- 
stances give rise to a verecundia extraordinaria, and many of the 
more important recent moralists regard them as a ratio excusans 
a lege Tridentina. Father Genicot, S.J., in his Institutiones theoL 
mor., II. n. 193, says : " Satis probabilem opinamur qiwrundam 
A. A. sententiam: excusare I'ereciindiam extraordinariam et vere 
invincibilem, piita si patruus apud nepotem peccatum valde pro- 
brosum confiteri deberet. Ratio est: in talibus casibus confes- 
sionem instituere difficillimum- esse ob ingentem repiignantiam 
vincendam. Nam, teste S. Thoma (Suppl. qu. 8, a. 4, ad 6) : 
' Multi sunt adeo infirmi, quod potius sine confessione morerentur 
quam tali sacerdoti confiterentur.' Neque videtur hoc incommo- 
dum intrinsecum confessioni. Huic e-nim reapse intrinseca est 
amissio famae apud confessarium, nequaquam autem difficidtas 
orta ex eo, quod, quis hie et nunc nullum alium habeaf confes- 
sarium praeter hunc, quem, justas ob causas, summopere horref. 
Vel, etiamsi cui videatur intrinseca, non apparet, quare in lege 
probabiliter mere ecclesiastica et in qua AA. excusationes admit- 
tunt ob causam non ita gravem, puta unins alteriusve leucae dis- 
tantiam (S. Alph., n. 264), non possit per epikiam excipi casus 
humanae infirmitati durissimus." 

Aemilius Berardi, the well-known Italian writer on pastoral 



CONFESSION BEFORE CELEBRATION 283 

theology, expresses himself in very much the same way in his 
Praxis Confessariorum (p. 558, etc.) ; he denies that the copia 
confessarii, presupposed by the rule of the Council of Trent, exists 
in a case where a co-nfessarius in promptu quideni esset, sed re- 
pugnantia invincibilis obstaret, quominns apud ilium confessio 
fieret, Quid enim si patrmts apud nepotem probrosissimi peccati 
confessionem facere cogeretur? Patrui apud nepotes confessionem 
facere non solent; et proinde ageretur de medio nimls abnormi. 
Caeterum {contra Gury, cas. consc. II. 287 et alios, qui hoc in 
puncto rigidissime sentitmt) mitius loquuntur theologi sequentes. 
Voit (n. 350) aperte supponit, quod verecundia sola aliquando 
possit esse tanta, ut excuset. . . . Gousset (n. 193) ait: " Confes- 
sarius deesse censeretur, quando talis dumtaxat sacerdos praesens 
foret, apud quern confessio, propter repugnantiam plus minusve 
legitimam, sed ineluctabilem, fieri nequiret. . . . Ego dicer em quod 
verecundia vere magna et extraordinaria sufficiaf, ut necessitate 
urgente cum sola contritione missa celebrari possit aliqua vice cum 
proposito adeundi proprium confessarium quamprimum ; nee volet 
ratio, quod sola verecundia nunquam sufficiat ad dimidiandam con- 
fessionem; facilius enim concedi potest, quod aliqua missa cum 
sola contritione {dum peccatum quamprimum certe accusabitur) 
celebretur, quani quod motivo verecundiae confessionibus dimi- 
diatis aditus aperiafur. . . . Quid detnum, si miser sacerdos in 
casu adeo stricto, ad infamiam potius subeundam aut ad alia in- 
convenientia permittenda esset paratus quam ad sacrificium adeo 
durum tolerandum? " 

Views equally lenient are taken by Fr. Kenrick, who died in 1863 
as Archbishop of Baltimore {Theol. mor. de euch., p. i, c. 4, § 2) 
and Noldin {Summa theol. mor., III. n. 141) ; the latter refers to 
Berardi and Genicot (//. cc.) in support of his opinion. 



284 THE CASUIST— VOL. IV. 

The reasons adduced by these eminent theologians certainly 
enable us to claim probability for their theory. In the case under 
consideration there is an incommodum gravissimum due, not to the 
confession itself, but to purely exterior considerations of kinship 
and affection, and therefore we may probably apply here the gen- 
eral principle: "lex humana (positiva) non obligat cum gravi in- 
commodo." The Council of Trent, in making this law, certainly 
had in view ordinary circumstances, in which a verecundia ex- 
traordinaria is connected internally with the duty of confession, 
not those in which it is connected with this duty in a purely 
external way. 

It is true that this distinction may be abused, and the plea of 
verecundia extraordinaria be put forward too lightly; such an 
abuse, however, would not be due to the theory, but to too lax 
an application of it in practice. 

The question resolves itself finally into this: 

Rigorism when pushed too far (as Berardi says, and as was 
suggested even by St. Thomas, /. c.) often leads to sacrilege, be- 
cause a priest cannot make up his mind to go to confession ; ought 
we not therefore to prefer to avoid it, by adopting a rational and 
justifiable application of a theory which, though less stringent, is 
probable, both for internal and external reasons? 

Such a case of verecundia extraordinaria occurs very seldom, 
and priests may be trusted to have enough prudence and con- 
scientiousness to prevent too lax an application of the principle. 
In my opinion Peregrinus was quite justified in being contented 
with contritio perfecta, although he was bound nevertheless to 
confess the sin committed quam primum, i. e., within three days. 

This more lenient opinion is obviously not to be limited to 
priests. For instance, a priest's sister, acting as his housekeeper, 



CONFESSION BEFORE CELEBRATION 285 

after making her confession on the day before Communion to 
a priest in another parish, might commit a similar peccatum pro- 
brosissimum. Could she be bound to confess it to her own 
brother? No one could seriously require this of her; there is 
not only such a thing as vera necessitas celebrandi, but also neces- 
sitas communicandi. 

We are far from wishing to tolerate laxity too freely, but a 
knowledge that there is a more lenient view may be of assistance 
to confessors and help priests, who are their penitents, to avoid 
a conscientia erronea. — Dr. Johann GfoUner. 



LXXVI. MISTAKEN IDEA OF THE SIN OF 
PRESUMPTION 

Penitents, especially children, are apt to say that they have 
sinned through presuming on God's mercy. When asked what 
they mean, they say : " I thought I would do something and then 
confess it." Are such penitents really guilty of presumption? 

No! What is presumption? St. Thomas defines it, in his 
Summa, II. II. qu. 21, a. i, as " immoderantia spei in hoc, quod 
aliqids tendit in aliquod bonum ut possibile per virtutem et miseri- 
cordiam divinam, quod possibile non est; sicut cum aliquis sperat 
se veniam obtinere sine poenitentia vel gloriam sine mentis." Any 
such excessus spei is sinful, for underlying it, as the angelic 
doctor explains (/. c. a. 2) is an intellectus falsus, vis. a 
false supposition that God pardons those who continue in their 
sins. Excessus spei arises from this erroneous idea, as a motiis 
quidam appetitivus; and it is sinful because omnis motus appeti- 
tivus, qui se conformiter habet ad intellectum falsum, secundum 
se mains est et peccatum. 

The explanation given by St. Thomas of the nature and sin- 
fulness of presumption shows that this sin has not been com- 
mitted in the case under discussion. He is presumptuous, qui 
sperat se veniam obtinere sine poenitentia; for this excessus spei, 
being a motus appetitivus, is based upon a false assumption that 
God will pardon one who refuses to amend his ways. Our peni- 
tent, however, thought that he could confess his sin ; consequently 

286 



MISTAKEN IDEA OF THE SIN OF PRESUMPTION 287 

he did not make the mistake of supposing that God would pardon 
him if he persisted in sin, but he was right in believing that the 
Lord would have mercy upon him if he repented and confessed. 
Therefore the motiis appetitivus is based upon this correct sup- 
position, vis., upon the hope of pardon, and is not sinful. On 
the contrary, the intention to confess the sin is apparent in this 
thought, and is contained implicite in it, and is in itself good, so 
that such a penitent sins less than he would have done without 
thinking of his conversion; for without this thought his will 
would have been more inclined to sin and its malice would have 
been greater. " Peccare sub spe veniae quandoque percipiendae, 
cum proposito abstinendi a peccato, et poenitendi de ipso, hoc non 
est praesumptionis, sed hoc peccatiim dimimiit, quia per hoc videtur 
habere vohintatem minus firmam ad peccatum" (Th,, /. c. q. 21, 
ad 3). Hence, according to St. Albertus Magnus, Adam sinned 
less grievously, " Quia sub spe veniae peccavit." 

It is with good reason that Lehmkuhl warns confessors (I. n. 
312) to make sure that penitents who accuse themselves of pre- 
sumption are really guilty of this sin. For " si quis ex fragilitate 
vel passione peccaf simul sperans, fore ut veniam postea conse- 
quatur, ac proinde statuens saltern implicite, se postea converti et 
a peccato recedere, non committit peccatum praesumptionis, imo 
ut scriptores notant, peccatum potius diminuitur" (/. c). 

If, however, the sin of presumption has been committed, how 
ought we to deal with it? Is it invariably a mortal sin? In its 
nature it is a mortal sin, but propter indeliberationem vel imper- 
fectionem actus it may, like other sins that are in their nature 
grievous, become merely venial. Modern moralists, such as Gury, 
Lehmkuhl, and others, are of opinion that whoever commits a 
venial sin through presumptuous confidence in God's mercy com- 



288 THE CASUIST— VOL. IV. 

mits also a venial sin of presumption. Elbel, on the contrary, 
thinks that in this case there is no real presumption, " quia per hoc 
non exspectatur beatitudo temerarie vel mediis in himc finem a 
Deo minime ordinatis obtinenda." — Dr. Kilian. 



LXXVII. FALSE WITNESS IN A COURT OF JUSTICE 

In a criminal trial Caius was called as witness against Titus, and 
gave false evidence on oath. This evidence, in conjunction with a 
good deal of circumstantial evidence, caused Titus to be sentenced 
to six years' imprisonment and to the loss of his civil rights for a 
similar period. After Titus had served over a third of his time, 
Caius attended a mission, and his conscience was awakened, and he 
went to confession. What obligations ought his confessor to impose 
upon him? 

1. Is Caius bound to make restitution? 

2. Is he bound to give information against himself, so as to 
effect the release of Titus ? 

I. We have here a case of injusta damnificatio, unjust injury of 
a fellow man. For the duty of restitution to follow any injurious 
action, it is necessary (a) that the injury be unjust, that it is a 
violation of some real right, not merely of love or some other 
virtue; (b) that the action be really causa efficax damni per se; 
i. e., a that the injury actually followed, and was not merely in- 
tended or attempted, /?, that the injury can be referred to the ac- 
tion as its obvious cause; and (c) that it be theologically sinful. 

The first two conditions are plainly fulfilled. Titus was con- 
demned though he was innocent, and he suffered injury; — the 
loss of his liberty, honor, means of livelihood, etc. 

If Caius intentionally or through criminal negligence gave false 
289 



290 THE CASUIST— VOL. IV. 

witness, he is manifestly responsible for the whole injury and 
therefore is bound to repair it. If he made false statements in 
invincible error, he is under no such obligation. The same may 
probabilius be asserted, if his false testimony was due to some 
venial sin of carelessness or want of thought. Lehmkuhl is right 
in pointing out (Casus II, n. 692) that an action involving a 
venial sin approaches an innocent action more closely than one 
involving mortal sin. It should, however, be borne in mind, that 
the duty of care and attention, and therefore the sinfulness of 
neglect, increases in proportion to the importance of the matter; 
so that carelessness might be in one case a mortal, and in another 
only a venial sin. In either case, however, whether Caius has 
committed a venial sin or no sin at all, justice requires him to 
correct his mistake, as soon as he becomes aware of it, if there is 
reason to hope that such a correction will avail to secure the re- 
lease of Titus, and the restoration of his honor, and to prevent 
his suffering further harm. We are bound in justice not only to 
refrain from wilfully injuring our neighbor, but to take care that 
no bad result shall come to him in consequence of our action. 

If it is in Caius' power to correct his false testimony, if such a 
correction would do good to Titus, and if nevertheless Caius does 
not make it, he at once becomes bound to make reparation for all 
the harm resulting from his false evidence. We are assuming, 
however, that the witness sinned venially or not at all, so he can- 
not be required to effect the correction at the cost of inflicting a 
comparatively greater injury upon himself. That people should 
regard him as a rather reckless person would not, as Lehmkuhl 
remarks, do him any serious harm; but if there were reason to 
fear that he might be condemned in a court of law for giving 
careless evidence he need not retract his evidence. 



FALSE WITNESS IN A COURT OF JUSTICE 291 

2. How do matters stand if a witness has given false evidence 
either purposely or through criminal negligence ? 

In the first place, he would certainly be responsible for all the 
harm inflicted on the accused man himself and his family. Would 
it be the duty of the witness to give information against himself 
and to expose himself to serious penalties, such as loss of liberty, 
honor, and property, in order to obtain the release of the innocent 
man and to save his honor? Lehmkuhl (Th. m., II, 820, IV) says 
that three things must be kept in view in judging the question: 
the guilt of the false witness, the injury to the innocent man, and 
the penalty on the guilty person. 

If it were physically or morally possible, he might go to some 
place where he would be safe from arrest, and there mal^e his 
retractation in legal form before a commissioner, and then send 
it, or have it sent, to a court competent to deal with the matter. 
If this retractation seems credible, and circumstances and facts 
are mentioned which bear it out, so that the proceedings can be 
re-opened, and the accused man set at liberty, this course will 
suffice. 

It is not always, perhaps it is not often practicable, however, 
because people are apt not to believe a retractation sent from a 
distance, and it might easily be misused. 

If therefore the case is merely one of carelessness, it would be 
the witness's duty to surrender himself to justice, even at the risk 
of prosecution for carelessly making false statements on oath, 
since the punishment he would have to undergo is trifling in com- 
parison with the penalty imposed upon the innocent person. If, 
however, the sentence had been less severe, or if the innocent 
prisoner had served the greater part of it, and his loss otherwise 
was not very great, — whereas the witness, if sentenced to im- 



292 THE CASUIST—VOL. IV. 

prisonment, would lose some official position, — under such cir- 
cumstances the false witness need not retract his evidence. 

The obligation to do so is more binding if the witness wilfully 
committed perjury. If such a witness acknowledges later that his 
evidence was false, he is subject to a heavy penalty. Schwane 
{Die Gerechtigkeit, § 80, 5) says that no one can force a man 
to denounce himself and to expose himself to such a penalty. 
The communis of most writers is, however, opposed to this 
view, and requires the malum nocentis not to be taken into con- 
sideration in comparison with the malum innocentis, and regards 
it as his duty to repair the injury to the innocent man, at the cost 
of at least equal suffering to himself. Lehmkuhl thinks that he 
ought to expose himself to a much more severe penalty, because 
of the lasting slur cast on the innocent person's character. 

It depends entirely upon the circumstances of each individual 
case whether we ought to take into consideration any differences 
of rank in the persons concerned. It is possible that the innocent 
man, if of low rank, might suffer no serious consequences beyond 
the actual loss of his liberty for a time, but that the witness would 
be absolutely ruined. 

If the verdict was certain without his evidence, because the 
charge was sufficiently proved by the testimony of others, and if 
what he said did not cause the penalty to be made more severe, 
the witness need not be called upon to make reparation and to 
expose himself to such serious injury. Practically he is often not 
required to make a retraction, because it would do no good to 
the innocent man (Genicot). 

Some authors go much further and say that if a man has been 
condemned to death on false evidence, and the witness would 
endanger his own life, he must still acknowledge himself to be 



FALSE WITNESS IN A COURT OF JUSTICE 293 

a murderer and confess his own crime, if no other way is open 
to him; for the Hfe of the innocent is preferable to that of the 
guilty. It is only where the sentence pronounced was compara- 
tively light, and the term of punishment perhaps at an end, and 
the loss of reputation inconsiderable, that a witness might be re- 
leased from the obligation of giving himself up to justice, al- 
though the duty of making full compensation for the material 
loss suffered by the innocent man would remain. 

It might occur that a witness, although he sinned grievously 
by giving false evidence, did not realize the severity of the sen- 
tence that he was bringing down upon the accused. Such a thing 
might happen among the lower classes. 

Now that I have examined the question again, this is the 
sense in which I prefer to answer it, although hitherto, and even 
in the sixth edition of my Moral Theology, 1 have left it un- 
decided. St. Alph., 1. IV. n. 269 (Busemb.) ; Lehmkuhl, Th. m., 
I. 820, IV. ; Cas consc, I. 693 ; Aertnys, I. 1. V. Tr. III. 1. III. 
n. 361 d; Schindler, II. 225; Gousset, II. 1050; Konings, I. 
1074; Haine, L. 2 p. 2537, cf. pp. 142, 143; Genicot, II. Tr. X. 
n. 14. — Prof. Dr. Goepfert. 



LXXVIII. BREACH OF CONTRACT 

The following case was sent me recently for discussion. 

An agent employed by an insurance company was commissioned 
to investigate the cause of a fire, and discovered a store of 
paraffin in the house that had been burnt down. According to 
the terms of the insurance policy, no payment can be claimed 
from the company by any one storing paraffin on his premises, 
but in this case the paraffin was certainly not the cause of the 
fire, as the agent found it had not been touched by the flames. 
The shopkeeper, in order to avoid any difficulty with the insur- 
ance company, gave the agent £50 to say nothing about the paraf- 
fin, and the company paid £500, the sum for which the house 
was insured, without demur. Is the agent bound to refund (i) 
the money that was the price of his silence, (2) the money paid 
by the company? If so, to whom ought it to be refunded? 

Answer'. — From the wording of the question I infer that the 
insurance agent has accused himself in the confessional of his 
trickery. Otherwise we should have to begin by considering the 
case of the shopkeeper, and ask whether he ought not to refund 
the money received. The agent and the shopkeeper are coopera- 
tqres ad damnum, but in such a transaction the jubens et consu- 
lens comes first, and the mutus or at least no7t obstans second. 

The shopkeeper is guilty of breach of contract. An insurance 
policy is a bilateral contract : " You pay me so much annually, 
and I undertake to pay you a proportionate sum if your house is 

294 



BREACH OF CONTRACT 295 

burnt down accidentally, or by some one else's fault." Both par- 
ties are bound conscientiously to observe the terms of the contract. 

In the case before us a flagrant breach of contract has occurred 
on a point upon which the company insists as a conditio sine qua 
absolute non. The shopkeeper has no right at all to his £500, 
he is enriched by means of res aliena; and that being so, as he has 
been the cooperator juhens in the transaction, he is especially 
bound to make restitution. 

In a less degree the agent is also bound to refund the money.^ 
He is not bound, if the causa principalis has made restitution 
(Alph., lib. 3, n. 581) ; but, on the other hand, the causa princi- 
palis is required to indemnify the agent, if he has made good the 
whole loss. 

In case the shopkeeper refuses to refund the money, and the 
agent has not the means to do so, he must at least pay the com- 
pany the £50 that he received as hush money. 

If the shopkeeper makes restitution, common sense would prob- 
ably suggest that the two cooperatores should refund pro rata in 
solidum; the consulens £450 and the mutus the £50 hush money. 
The tacit condition that the £50 is to be paid only if the insurance 
money is secured is worthless. I suppose, however, that the agent 
might keep the £50 if the shopkeeper refunded the £500 in full, 
and made no claim upon him; for (i) the latter was sciens and 
volens, and must have been prepared for a possible frustration of 
his designs; (2) the agent was, quite apart from that, bound to 
make full restitution in case the shopkeeper refused to do so. — 
Professor Gspann. 

^ For the mutiis contra jiistitiam to be held responsible, three things are 
requisite : (a) lit ex officio oUigetur, (b) iit culpabilUer non impedierit, (c) ut sine 
gravi incommodo damnum avertere potiierit. 



LXXIX. SYPHILIS IN MARRIAGE 

A married woman learns that her husband is suffering from 
syphilis. Must and can she continue to live with him as his wife? 
He declares solemnly that he has not contracted the disease by 
any fault of his own. 

In consequence of the immorality prevalent in large towns, 
cases of this kind frequently occur, and may have very disastrous 
results, so that a detailed discussion of the subject seems 
necessary. 

If the husband has contracted this loathsome disease through 
actual adultery, he has lost all right to the debitum conjugate^ 
and consequently the wife may refuse to live with him. This is 
the doctrine taught by all writers on moral theology and canon 
law; they base their opinion upon Matth. v, 31, 32, and xix, 9. 

In dealing with the case before us, we are not concerned with 
the details of the adultery, nor with the question whether sodo- 
mitic and bestial intercourse have the same effect, and therefore 
we may set aside these matters. 

The man declares that he has contracted syphilis by no fault 
of his own. Is this statement credible? Physicians are now 
agreed in believing that people may possibly, though not probably, 
become infected with syphilis in an innocent manner. Dr. Surbled 
writes as follows : " The infection can be conveyed directly through 
the mouth, the breast, or any other part of the body where the 
mucous membrane is exposed; but there are many indirect ways 

296 



SYPHILIS IN MARRIAGE 297 

of becoming infected ; for instance, by drinking- out of a glass 
or smoking a pipe used by a sufferer from syphilis, or by wearing 
his clothes. Midwives are by their occupation exposed to the 
danger of catching this disease, and so are medical men. . . . 
However, it is only in exceptional cases that syphilis is caught 
in any of these ways, and they do not suffice to overthrow the 
general theory that " syphilis is a serious disease, brought on by 
immorality, and, as a rule, only those who voluntarily lead a 
vicious life display its unpleasant and shameful symptoms." (La 
morale dans ses rapports avec la medecine, II. 92, 93, ed. 10.) 
Other physicians write in a very similar way. 

We may assume therefore that the husband's assertion is hardly 
credible, unless he can bring forward some proof of his innocence. 
If he adheres to his statement, his wife ought not to refuse him 
the debitum conjugale on the ground that he has probably com- 
mitted adultery, because his undoubted right to the debitum can- 
not be contested on the ground of what is only a probability. It 
is true that when a question arises of the loss of the debitum 
conjugale in a case of adultery, only a moral certainty as to the 
facts of the case is required, but it can hardly be said to exist 
here. 

There are, moreover, other reasons besides adultery which re- 
lease anyone from the debitum; we may sum them up shortly, and 
say that the debitum need not be granted if it would result in 
any considerable injury to mind or body. The moralists teach that 
a separation from bed and board is allowed where otherwise there 
would be great danger of sin. 

With regard to bodily injuries Berardi writes: "Debitum habi- 
tualiter et vicissim denegari potest: (i) Si uxor in partu mortis 
periculum subiret, ita ut si denuo gravida evader et, medi-corum 



298 THE CASUIST— VOL. IV. 

judicio certo aut probabiliter moritura esset. (2) Si uxor incipi- 
ente canchro uteri lahoraret, ita ut post coitum copiosae sanguinis 
emissioni subiceretur. (3) Si ipsa coitum subiret cum dolore valde 
acuta, qui singulis vicibus repeteretur. (4) Si vir lue venerea 
laboraret, ita ut in verendis ulcera aut percolationes haberet; tunc 
enim non solum uxor ipsa, sed etiam proles miserandum in modum 
inficeretur, non sine magno periculo, ne abortus sequatur et ipsum 
baptisma administrari nequeat. ... (5) Si vir aut uxor vitium 
organicum cordis haberent; tunc enim coitus semper valde nocet 
et mortem etiam repente et actu ipso producer e potest. (6) Si vir 
aut uxor ita phthisi pidmonari (this would probably apply to every 
other form of communicable tuberculosis) labor arent, ut assidue 
fcbricitantes ad ultimum huius morbi stadium approximarentur ut 
sanguinem iam exspuerent" {Praxis Confessar., I. 1042). 

Capellmann-Bergmann writes very decidedly on the subject of 
syphilis : " Syphilis is so serious, disgusting and shameful a dis- 
ease, that in my opinion the copula ought always to be forbidden, 
if only one of the conjuges suffers from it. In this disease the 
danger of the healthy person being infected at the copula is very 
great, as long as any external symptoms exist. Even when 
syphilis is latent in the husband, and there are no external symp- 
toms of it, the wife may be infected as soon as impregnation 
occurs. For the infected person to demand the copula would be 
a horrible outrage upon the healthy partner, on whose part it 
would be in my opinion madness, rather than charity, to incur so 
great a risk of being infected with such a disease. I cannot even 
regard a periculum incontinentiae as a causa honestas in this 
matter. I may be thought to speak too strongly, but whoever 
has seen the awful consequences of this disease will agree with 
me. I think that there is not a single medical man who would 



SYPHILIS IN MARRIAGE 299 

not share my opinion. The consequences to the offspring result- 
ing from such a copula are most disastrous. The children are 
almost always syphilitic, like their parents, even when in the 
parents the disease is latent. Abortion and premature births are 
of common occurrence, and children carried to the full time often 
die most miserably before they are more than a few months old. 
Thousands of children are thus called upon to expiate the sins 
of their fathers, and often die without baptism." {Pastoralmed., 
192, ed. 14.) 

From the purely medical point of view there may be full justi- 
fication for these statements, but moral theology requires us to 
recognize certain distinctions and limitations, which may be 
summed up as follows : 

(i) If one conjux shows symptoms of syphilis, a trustworthy 
physician must be consulted, and asked to decide whether the 
syphilis is hereditary or acquired. If the former, the patient is 
of course not to blame, but the confessor ought, if not actually 
to insist upon, yet at least urgently to recommend, continence, 
because hereditary syphilis may be communicated to the offspring 
of a marriage, although it is not directly infectious. 

(2) If syphilis has been acquired after marriage, inquiries must 
be made to ascertain whether it has been contracted in an innocent 
or guilty manner. If the latter, the innocent partner has the 
right to refuse copula carnalis. The same right exists also in the 
former case, but for another reason. St. Thomas has laid down 
the principle: Vir tenetur uxori dehitiim reddere in his quae ad 
generationem spectant, salva tamen prius personae {propriae) 
incolumitate (Suppl. qu. 34, art. i), i.e., if to grant the debitum 
would involve serious danger to one's own health, it may be re- 
fused. Periculum incontinentiae and any quarrels that might re- 



300 THE CASUIST~~VOL. IV. 

suit from the refusal are not enoug-h to force the innocent part- 
ner to grant the debitum conjugale, as the)^ only amount to a 
necessitas gravis, and no one is bound in such a case to assist 
his neighbor cum maximo propria incommodo. 

The decretal of Alexander III. (c. 2 X. IV. 8), which is some- 
times quoted on the subject, need not be understood to impose 
such an obligation. It contains the words: Quod si virum sive 
uxorem leprosiim fieri contigerif et infirmus a sano carnale debitum 
exigat; generali praecepto Apostoli, quod exigitur est solvendum: 
cui praecepto nulla in hoc casu exceptio invenitur, but at the time 
when it was issued copula cum leproso was not considered likely 
to cause the disease in a healthy person. Many medieval writers 
pointed out this fact when commenting on the decretal. (Cf. 
S. Thomas, /. c. ad IV, Sanchez, de matrim., lib. IX. disp. 24, n. 17, 
Cajetan, Victoria, Soto, Ledesma, etc.). Therefore it may be 
laid down as a general rule that the healthy partner is not bound 
to grant the debitum conjugale. Certain limits may be assigned 
to the right to refuse it. There is still a good deal of obscurity 
with regard to the therapeutics of syphilis ; and the disease, after 
apparently being cured, sometimes breaks out again, but still medi- 
cal men as a rule believe that the danger of infection ceases after 
a definite period. Professor E. Lesser {Klin. Wochenschr., No. 23, 
1902) says: "The danger of infection is connected with the 
secondary period, and does not continue more than five years." 
Consequently the innocent partner is perhaps bound to grant the 
debitum conjugale, if the other has shown no symptoms of syphilis 
for a considerable time. 

(3) The innocent partner must refuse the debitum if to grant 
it would cause unjust injury to a third person, and especially to 
their own children. It frequently happens that there are children 



SYPHILIS IN MARRIAGE 301 

requiring education, or aged parents needing support, or that 
mother and child would both perish if she became pregnant as 
a result of granting it. In these and similar cases the innocent 
partner would not be justified in risking infection, as thus an 
absolute wrong would be inflicted upon others. In my opinion 
it would objectively be grievously sinful for the mother of little 
children to grant the copula to a syphilitic husband, as she would 
expose her children to the danger of becoming orphans, and 
should she again be pregnant, the child would certainly also 
suffer from syphilis, and would probably die before its birth, and 
so be deprived of baptism. It would be absolutely cruel for a 
mother to treat her children thus. The case is different if from 
conjugal intercourse the only sufferer is the innocent partner. 
Under certain circumstances copula might not only be allowed 
in this case, but might even be very meritorious. For instance, 
if a good wife has reason to hope that by her self-sacrifice in 
granting the copula to her disgusting and syphilitic husband she 
may preserve him from worse evils, or even bring about real 
amendment of life, it would be a meritorious work to allow con- 
jugal intercourse, and not madness, as Capellmann calls it in the 
passage quoted above. Her husband is in necessitate gravi spiri- 
tuali, and it is permissible, and even meritorious, to save one's 
neighbor from such a state, even at the risk of one's own life. 

It is, for instance, highly meritorious if a missionary ministers 
to lepers, although he incurs great danger of infection. 

Of course a woman granting the copula under such circum- 
stances would take all possible care, in accordance with medical 
advice, so as to avoid infection, since it is a duty incumbent upon 
every man to protect his own health as far as he can. 

Several eminent theologians, such as Sanchez, Petrus, Soto and 



302 



THE CASUIST— VOL. IV. 



others, teach that in such cases the copula is permissible and 
meritorious. Cajetan, however, says: Si sanus aut sana conjux 
non curat periculum infectionis propriae ex contagione propter 
amorem conjugis, non solum a peccato excusatiir, sed, si ex cari- 
tate facit, meretur. Videmus quotidie nostris temporibus (it does 
not say much for the morality of that period!) conjuges non se 
deserere quoad torum et habitationem, propter tarn grande malum 
et contagiosum, quale est malum vulgariter appellatum gallicum. 
(Com. in II. II. qu. 154, art. i, n. 14.) This malum gallicum was 
nothing but syphilis. 

In practise a confessor ought to be very cautious when such 
a case comes under his notice, and he ought to express no decided 
opinion without knowing that of a trustworthy physician. — 
Dr. Prummer, OP. 



LXXX. CONVERSION FROM THE EASTERN 
SCHISM TO THE CATHOLIC CHURCH 

Jovan, after being baptized and brought up in the Greek Church, 
now desires to be received into the CathoHc Church. Is his bap- 
tism to be regarded as vaHd? 

The Church strictly orders a priest who obtains faculties to 
admit to the Catholic Church a person belonging to some other 
Christian denomination to make sure that the convert has been 
validly baptized. If post vestigationem peractam it appear cer- 
tain that he has not been thus baptized, the priest must baptize 
him absolute. Should there be a probabile rationabile diibium 
with regard to his baptism, the Sacrament must be administered 
again conditionally. 

Have the Eastern schismatics valid baptism? 

Baptism is undoubtedly administered validly in all the so-called 
Churches (the name is used incorrectly, as there is but one Church, 
viz., the Catholic) which have come into existence in consequence 
of the Oriental or Greek schism since 1054. We may regard as 
validly baptized all the members of the schismatical Greek Church 
in the patriarchates of Constantinople, Alexandria, Antioch and 
Jerusalem, also all who belong to the Orthodox Church in 
Russia, to the Greek Church in Greece, to the Orthodox Churches 
in Bulgaria, Servia and Montenegro (Cemagora), as well as the 
Serbs, Bulgarians and Roumanians in the Turkish territory near 
the Balkans. The same is true of the Serbs, or Greeks, or Or- 
thodox in Bosnia and Herzegovina, of the Dalmatians, Croatians 

303 



304 THE CASUIST— VOL. IV. 

and Slavonians, both in Hungary and in Austria. It is true also 
of all adherents of the schismatical Greek Church in Roumania, 
as well as of the members of the Graeco-Roumanian Church in 
Hungara and Siebenbiirgen, as well as in Bukovina. We may 
safely assume that the members of any one of these Churches 
have been validly baptized. Some doubt may arise in the case 
of Russian sectarians, who have cut themselves off from the 
Orthodox state Church and can hardly be said to retain the prin- 
ciples of Christianity. There seem to be several millions who 
belong to various sects of this kind, and many may not have 
been baptized at all if they have succeeded in evading the com- 
pulsory baptism required by the state. 

There are good reasons for regarding as valid the baptism of 
m.embers of the Eastern Churches. They have preserved the 
hierarchy instituted by Christ with the potestas ordinis, and their 
priests have valid orders. They retained the Sacrament of Holy 
Order and great care has always been taken to preserve the 
validity of their orders. In the Churches enumerated above there 
are priests (popes) who administer the Sacrament of baptism, 
in fact, in some of these Churches, baptism could at one time not 
be administered by laymen, but only by a properly ordained 
priest. A Catholic synod in 1703 complained: " Schismatic or um 
quippe perniciosa lex est, parvulos, urgente quoque necessitate, 
nonnisi a Sacerdote haptisandi" {Collect. Lacensis, I. p. 298). 

Although this may not have been a universal practise among 
the Eastern schismatics, it shows what scrupulous care was taken 
to secure valid baptism, as laymen were not permitted to admin- 
ister it lest they should not do so validly. This fear seems justi- 
fiable, as the people in general are not well instructed in religious 
matters. 



CONVERSION FROM THE EASTERN SCHISM 305 

The members of the Eastern Churches, Hke ourselves, regard 
baptism as the first and most indispensable Sacrament, by means 
of which original sin and all actual sins committed before bap- 
tism are forgiven, and sanctifying grace is imparted to the soul. 
The idea, common among Protestants, that baptism is only a 
signum mere externae aggregationis ad ecclesiam, is quite foreign 
to the Eastern Churches. They are far from regarding it as a 
matter of indifference how baptism is administered, and their 
priests are most careful in seeing that this most important Sacra- 
ment is administered validly in accordance with their ritual. The 
Church is forced, however, to emphasize the fact that the laity 
may now validly baptize in casu necessitatis if the correct matter, 
form and intention are present. 

Pope Eugenius IV., when he issued the decree Pro Armenis at 
the Council of Florence in 1439, felt it necessary to decide: 
"Minister hujus Sacramenti (Baptismatis) est sacerdos, cui ex 
officio competit haptizare. In causa aittem necessitatis nan solum 
sacerdos vel diaconus, sed etiam laic us vel mulier, immo paganus 
et haereticiis baptisare potest, dummodo formam servet ecclesiae 
et facere intendat quod facit ecclesia." 

The East is strictly, almost rigidly, conservative, and the East- 
ern Churches display, with reference to all their ecclesiastical 
customs, the greatest aversion to departing from the traditional 
consuetudo. This is particularly the case with regard to baptism 
and the ceremonies connected with it. They adhere most exactly 
to their traditional ceremonies. Their Forma baptismi is very 
simple; the Latin translation of it is: " Baptizatur {baptiaetur is 
also valid) servus (a) Dei N. in nomine Patris et Filii et Spiritus 
Sancti." The priest baptizing utters these words in either the 
liturgical language or in the vernacular, and this amount of 



3o6 THE CASUIST— VOL. IV. 

familiarity with the Euchologium (Ritual) may be assumed in 
the least educated priests of the Eastern Churches, who all know 
and use this formula. It is certain too that they use natural water 
as the matter of baptism and not an artificially produced fluid of 
any kind. As many believed the water ought to be cold, Pope 
Eugenius IV. stated in the decree '' Pro Armenis," already quoted : 
" Materia hujus Sacramenti est aqua vera et naturalis; nee refert, 
frigida sit an calida." In cold countries considerations of health 
induced people to use warm water; in fact some maintained that 
it ought to be warm. 

What must we say of the Materia proxima, or of the union of 
matter and form in the Eastern Churches? In this respect there 
can be no question that baptism, as they administer it, is valid, 
for they still retain the ancient trina immersio, or (according to 
Denzinger, Ritus Orient., § 2) they use immersionem aspersione 
mixtam above the infant's head, so that it is impossible to doubt 
that a sufficient lotio realis et symbolica takes place in connection 
with the utterance of the short form of words. 

It may be asked whether this Forma baptismi of the Eastern 
Church is sufficient. 

At the reunion council of Florence in 1439 no objection was 
raised to the method of baptism used in the East from remote 
times, and in the decree Pro Armenis, Eugenius IV., after giving 
the Latin forma baptismi, goes on to say: ''Forma autem est: Ego 
te baptiso, etc. Non tamen negamus, quin et per ilia verba: Bap- 
tizatur talis servus Christi in nomine Patris et Filii et Spiritus 
Sancti, vel: Baptizatur manibus meis talis in nomine Patris et 
Filii et Spiritus Sancti, verum perficiatur baptisma; qiwniam cum 
principalis causa, ex qua baptismus virtutem habet, sit Sancta 
Trinitas, instrumentalis autem sit minister, qui tradit exterius 



CONVERSION FROM THE EASTERN SCHISM 307 

sacramentum ; si exprimitur actus, qui per ipsum exercetur minis- 
trum, cum Sanctae Trinitatis invocatione, perficitiir sacramentufK." 
(Denzinger-Bannwart, 696.) 

It is a matter of history that Novatian caused a schism in Rome 
about the middle of the Third Century; he found many followers 
in the East, who maintained : Fides ministri est necessaria ad bap- 
tismi valorem. In order to check the evil resulting from this 
doctrine, the Eastern Church prudenti oeconomia introduced a 
change in the form of baptism, so that haptisatiir (paTTTL^eTai) was 
used instead of ego te baptizo. This is the account given by the 
learned Peter Arcudius {Concord. Eccl. occid. et orient., 1. i, c. 
3, 8). The Latins derived their form of baptism from our Lord's 
word " Baptizate" (Matth. xxviii, 19); the Greeks from " Bap- 
tizamini" (Acts i, 5). 

What has been said of the Churches that owe their origin to 
the schism of Constantinople, according to the Cone. Florentinum, 
applies, of course, equally to the schismatical Armenians, in case 
any of them wish to return to the Catholic Church ; their baptism 
is valid. 

All the Eastern Churches have a form for blessing water to be 
used at baptism: Benedictionem aquae baptismalis omnes Orien- 
tales ex antiqua et universali Ecclesiae disciplina sancte retinent. 
(Denzinger, Rit. Orient., § i.) 

The Roman Church has always respected the old ceremonies 
used as sacramentals that occur in the Eastern ritual of baptism ; 
they take the place of those of the Latin Rituale. Hence no 
supplementary baptismal ceremonies are performed in the case 
of converts from any of the Churches that we have mentioned, 
although it seems desirable to perform them in that of converts 
from Protestantism, that they may receive these sacramentals, even 



3o8 TEE CASUIST— VOL. IV. 

if otherwise their Protestant baptism has proved to be valid, 
investigatione peracta. 

The Cathohc Church therefore has nothing to do with our 
convert Jovan in respect of his baptism, for all is in order. 

Should a member of one of these schismatical bodies and a 
Catholic intend to enter into matrimony, there need be no doubt 
as to the valid baptism of the former. But in mixed marriages 
between Catholics and Protestants, the invalidity of the Protestant 
baptism frequently gives rise to a suspicion of impedimentum dis- 
paritatis cultus. — ^J. Banner, S.J. 



LXXXI. IRREGULARITIES OF AN APOSTATE 

George, a Catholic student, Ritiis latini, joined the schismatical 
Greek Church with the intention of receiving Holy Orders in it. 
The schismatical pope, who admitted him to this church, regarded 
the Latin baptism as invalid, being per infnsionem and not per 
immersionem. Consequently George was rebaptized according 
to the Greek ritual and at the same time received the Sacrament 
of confirmation, the Chrismatio frontis, which generally accom- 
panies baptism in the Eastern Churches. 

Some time afterwards George repented of his errors and sought 
to be reconciled with the Catholic Church. He was in retreat for 
several days and then, having made his professio orthodoxae fidei, 
a priest possessing the requisite faculties gave him absolution 
and released him ab excommunicatione. George now wishes to 
become a priest. Is this possible? He has been guilty of 

1. The delictum of joining the Greek schism. 

2. The delictum of absolute repetition of baptism. 

3. The delictum of repetition of confirmation. 

I. Joining any schismatical body involves apostasia a fide, at 
least if the primatus jurisdictionis of the legitimate successor of 
St. Peter, the chief of the apostles, be denied. Although a schisma 
purum not connected with any heresy does not involve this irregu- 
larity, it is involved by schism connected with heresy. Is the 
Greek schism a schisma purum? By no means, for it includes 
various heresies; — denial of the primatus jurisdictionis Romani 
Pontificis totius Ecclesiae, which was defined in opposition to the 

309 



310 THE CASUIST— VOL. IV. 

schismatical Greeks at the second Council of Lyons in 1274, and 
at Florence in 1439. Moreover, since the time of Photius the 
Orientals have rejected the procession of the Holy Ghost ex 
Patre Filioque, which was expressly defined at the Council of 
Florence in the decree " Laetentiir coeli." The Council added : 
" Definimus insuper, explicationem Filioque veritatis declarandae 
gratia et imminente tunc necessitate, licite ac rationabiliter symbolo 
fiiisse appositam." 

The same Council defined the existence of Purgatory and de- 
clared that the suffrages of holy Church benefit the poor souls 
detained there ; the schismatic Greeks deny in theory the exist- 
ence of any place of purification, although in practise they offer 
works of satisfaction, Masses and prayers for the dead, showing 
in this respect great inconsistency. We cannot therefore acquit 
them of heresy, and George is irregular ex apostasiae delicto ad 
schisma mixtum. 

2. He is irregular also ex ahiisu iterati baptismi absolute recepti. 
On the occasion of the final schism, due to the action of Michael 
Caerularius in 1053, the Cardinal legate Humbert complained that 
persons who had received Catholic baptism were rebaptized by 
the heretics, who acted like the Arians with regard to those 
already baptized in the name of the Blessed Trinity. (Hergen- 
rother, Photius HI., pp. 749, 758.) The Greeks have continued 
this practise down to the present time, because Latin baptism is 
per infusionem and not per immersioneni. 

Therefore George consented to an abusus iterationis baptismi, 
in injuriam prioris baptismi et fidei factus. An absoluta iteratio 
baptismi certo valide collati causes a decided irregularity in the re- 
baptized person. Moreover, this unconditional rebaptism was ad- 
ministered by a minister schismatico-haereticiis (c. 10, C. i, qu. 7; 



IRREGULARITIES OF AN APOSTATE 311 

c. 118, D. IV. de consecr.). These rules are still in force accord- 
ing to the present discipline of the Church — and a rebaptism of 
this kind presupposes heresy. 

N. B. The members of the Eastern Churches seem now to take 
a more favorable view of the validity of Latin baptism, as in 1883 
a Didache (Doctrina) was issued containing (cap. VII.) the 
words: " Baptisate in nomine Patris et Filii et Spiritiis Sancti in 
aqua viva. Sin autem non habes oquam vivam, in alia aqua bap- 
tiza; si non potes in frigida, in calida. Sin autem ncutrani habes, 
effunde (eKx^ov) in caput ter aquam in nomine Patris et Filii et 
Spiritus Sancti." 

3. The schismatical pope who rebaptized George also con- 
firmed him by anointing him with chrism on his forehead and 
saying: "The seal of the -\- gift of the Holy Ghost. Amen." 
Confirmation is generally administered immediately after baptism 
among the Greeks, and since the Fifth or Sixth Century both 
Sacraments have been administered by priests, who receive the 
necessary authorization from their Bishop, as well as the conse- 
wated chrism {^ivpov ). The Greek Euchologium (Ritual) ap- 
pends to the order of baptism the short formula: a-tfypayU Swpea^ 

-\- ■KvevftaTO'; dytov. 

We have here therefore a second abusus iterationis Sacramcnti, 
which, like baptism, impresses an indelible character upon the 
soul, and so cannot be repeated. 

Must we regard George as irregular also ex delicto iteratae 
chrismationis sen sacramenti confinnationisf The reatus of a two- 
fold sacrilege is there, but George did not become irregular in 
consequence of a repetition of confirmation; for irregularities are 
res odiosae, which must be treated as stricfae intcrprctationis. 
Such an irregularity can be contracted only if the Canoncs ct in- 



312 THE CASUIST— VOL. IV. 

terpretationes of the Holy See expressly say so; it is not to be 
inferred on analogy. In reference to abustis Sacramenti, c. 2, Ex 
literarum, X. V. 9, there is a definite statement : "" Per iterationem 
fecit injuriam baptismatis sacramento." It is a principle that 
Irregularitas non incurritur nisi in casibus in jure expressis; 
therefore no irregularity can be established nisi peculiari jure 
expressa, and no canonical decision has ever declared that repe- 
tition of confirmation constituted an irregularity. " Evadunt irreg- 
ulares: iterantes serio et scienter baptismum et rebaptizati minis- 
trantes; non autem iterantes confirmationem vel ordinem, cum hoc 
nan sit in jure expressum; adulti, qui scienter sinunt se ab raere- 
ticis extra casum necessitatis baptisari." Ferraris, Biblioth, torn. 
IV. s. V. irregularitas 2°). — J. Danner, S.J. 



LXXXII. JURISDICTIO DUBIA 

The chaplain of an institution told a story as follows: 

One Saturday soon after Easter I was busy preparing my ser- 
mon for the following- day when I was rung up on the telephone. 
The connection was fortunately not interrupted and the conver- 
sation began in the ordinary way : "I am H., chaplain at L., 
who are you ? " "I belong to the St. Elizabeth Hospital at A. 
Will you be good enough to come and hear the confession of an 
Italian woman who is ill and has not made her Easter Com- 
munion? There is no priest able to speak Italian in this neigh- 
borhood. A train starts for A. at half-past nine." 

I wanted to ask one or two questions but I was rung off, and, 
though I did my best, I could not get the connection renewed. 
" That 's the way with telephones," I said to myself, " they have 
their advantages and disadvantages ; now what is to be done ? " 

This might have been a good opportunity for my vanity to 
assert itself, — I was the only priest who knew Italian in all the 
neighborhood; the fame of my linguistic talents had spread even 
as far as A., etc. But happily there was no time for me to 
think of such things ; I had to make haste. The train was to 
start at half-past nine, and if I intended to catch it, I ought to 
be off at once. 

There were, moreover, other thoughts and considerations that 
caused me much worry, and they began to torment me even on 
my way to the station, which was not fax from my house. 

313 



314 TEE CASUIST— VOL. IV. 

In my haste I had had no time to think over the matter; my 
first impression had been that the woman was dangerously ill, 
with only a few hours to live. That must have been why I was 
asked to come at once, and why the time of the train was men- 
tioned. I had hardly realized that A. was not in our diocese, 
but I paid little attention to that fact, as any priest, whether 
belonging to the diocese or not, has full jurisdiction in the case 
of persons in- articulo or in periculo mortis. 

Now, however, the thought presented itself that she was per- 
haps not dangerously ill, and then what should I do? Why had 
the person who spoke to me by telephone added that she had not 
yet made her Easter Communion? If this addition meant any- 
thing at all, it seemed likely that I was being summoned in all 
haste, not because the patient was seriously ill, but because the 
time for fulfilling the Easter precept was drawing to a close. 

At the station I fell in with some other priests who traveled 
part of the way with me. I joined in their conversation as well 
as I could, but they remarked more than once that something 
unusual must have happened, for I was so dull and distracted. 
I was heartily glad when they got out and left me to my own 
melancholy reflections. 

I said to myself : What in the world am I to do if, on arriving 
at A., I find the patient not dangerously ill? — I will telegraph to 
the Bishop at N. and obtain the necessary jurisdiction. (N. B. 
There is no telephone between A. and N.) — But will he trust a 
perfect stranger? It is not altogether correct to telegraph for 
faculties to hear confessions. Will not the Bishop say : " What 
business is it of good Father H.? Can he not go to A. another 
day, after he has written to ask for faculties and received them 
in the ordinary way?" 



JURISDICTIO DUBIA 315 

In order to answer these quite justifiable arguments I should 
have had to explain all the circumstances, and I could not do 
that in a telegram. Even if I applied to the Bishop through the 
parish priest, or some other priest whom he knew, I still could 
not avoid the difficulties inseparable from the use of a telegram. 

I might perhaps serve as interpreter between the penitent and 
some priest belonging to A. That, however, is an extraordinary- 
proceeding which no one is bound to adopt. Would the sick 
woman agree to such a suggestion? Then I remembered having 
read in books on moral theology that a parish priest can give 
jurisdiction to another priest to hear confessions in his parish. 
This opinion is probable, probabilitate juris, and therefore is safe 
in practise. But at once I had to acknowledge that it was no 
good to me, for a parish priest can only give faculties to hear 
confessions to another parish priest, and I was only chaplain in 
an institution! 

Possibly, I argued again, the woman has only committed venial 
sins, and, according to a probable opinion, any priest, even with- 
out faculties, can absolve from venial sins. Such an "absolution is 
practically always valid, and, as in my case, there was a reasonable 
ground for giving it, it would also be permissible, although under 
other circumstances, according to the strict prohibition of Inno- 
cent XL (Decree Cum ad aures, 12 Feb., 1679), it would not be 
regarded as such. 

I could not console myself with this idea, however, for how 
was I to know beforehand whether the patient had committed only 
venial sins? As I could not know that, it was impossible for me 
to hear her confession at all and oblige her to accuse herself of 
sins from which I could not absolve her. Moreover, people are 
apt to regard many sins as mortal, which are really only venial, 



3i6 THE CASUIST— VOL. IV. 

and so they sin grievously subjectively, when objectively there is 
only a materia levis. What was I to do, poor chaplain that I was ? 

I commended the whole affair to Our Lady, and when I reached 
A. I walked to the hospital, prepared for anything that might 
happen. I was shown into the parlor and the Sister Superior 
came at once to see me. I introduced myself as the priest who 
had been summoned because I spoke Italian, and I asked her 
whether the patient were dangerously ill, or whether I was wanted 
only to give her an opportunity of fulfilling the Easter precept. 
The Superior said that the patient was seriously ill and had to 
undergo an operation on Monday, therefore she was to make her 
confesson to-day and receive Holy Communion the next morning, 
Sunday being the last day for fulfilling the Easter precept. 

I was greatly relieved on hearing this answer. Why had I 
worried so much about nothing at all? 

They brought me a stole and took me to the ward where the 
Italian woman lay. She was very glad to see some one at last who 
could talk her native language and she made the most of her 
opportunity. I pointed out to her that it might be harmful for 
her to talk much just then and that I had only come to hear her 
confession, etc. After giving her absolution, I left the ward to 
go and have a chat with old Father X., a chaplain like myself. 

In the corridor, however, I met the house surgeon, and, having 
introduced myself, I asked him whether the Italian woman, who 
was to be operated upon on Monday, were dangerously ill. I added 
incidentally that I had not noticed any signs of serious illness or 
great weakness, and this fact had led me to ask a question that 
would otherwise have been impertinent. 

" Dangerously ill ? " said the doctor. " I can hardly say that 
she is so bad as that." 



JURISDICTIO DUBIA 317 

" But she is suffering from appendicitis and is to undergo an 
operation on Monday." 

" Appendicitis ? Well, the nurse thinks she has it, but in my 
opinion she is suffering only from the effects of a chill. If she 
can be made to perspire freely she will soon be all right. If she 
is not better to-morrow evening we shall examine her again on 
Monday; that is what the sister meant by talking about an 
operation." 

" Would not an operation involve real danger ? " 

"Yes, of course; but will there be any operation? I do not 
think so. It is possible that the sister is right, but, as I have 
told you, I do not agree with her." 

The good man little knew what perplexity his answers were 
causing in my mind. The sister had told me that the woman 
was very ill and on the point of undergoing a serious operation. 
Therefore I had heard her confession and given her absolution. 
The doctor was now telling me quite the opposite and did not 
think that there was much the matter with her. Could I be at 
ease regarding the absolution that I had given? 

On comparing the two conflicting statements, I came to the 
conclusion that one possessed as much probability as the other. 

I had not yet visited our Lord in the Blessed Sacrament, so I 
asked my way to the chapel, and after making an act of adora- 
tion and praying for light, I leant my head on my hand and 
thought over the case. 

According to the writers on moral theology, I argued, articiihis 
mortis and periculwn mortis suffice to make it a duty to confess 
and receive the last Sacraments, and to give faculties to a priest 
to hear a confession. For periculum mortis it is enough that the 
danger of death is probable. What is, however, a prohahilc peri- 



3i8 THE CASUIST— VOL. IV. 

culum mortis? It is a circumstance or condition {helium, operatio 
chirurgica, morbus), which in many cases, and therefore probably 
also in this case, results in death. Some writers (cf. Lehmkuhl, cas. 
consc, 11. n. 453, p. 263) even give a wider interpretation to this 
probability, but it is undoubtedly necessary for the condition — in 
this case the serious illness — to be recognized with more or less 
certainty by means of its outward manifestations. How do mat- 
ters stand when it is merely probable that a probabile periculum 
mortis exists? Has any priest jurisdiction under these circum- 
stances? This is the case under consideration. 

Supposing I had administered Extreme Unction to this woman, 
would she certainly have received the grace of the Sacrament? 
No, not certainly, but only probably; and if the next evening 
the doctor's opinion proves to be correct, it is certain that she 
would not have received the grace of the Sacrament. Must I 
not argue in the same way with regard to absolution? 

Supposing I were now asked to anoint her, could I do so simply 
and unconditionally ceteris supponendis suppositisf I should, of 
course, say that there was absolutely no danger of a proxima mors, 
and therefore the administration of the Sacrament had better be 
postponed until some change took place in the patient's state, or, 
if there were some urgent reason for administering it at once — 
such as my having to leave A., and the probability that no other 
priest could attend for some considerable time — I might anoint 
her conditionally. Ought I not to have also absolved her condi- 
tionally? I can only declare with probability hie et nunc that my 
penitent has received the grace of the Sacrament. 

Supposing she had mortal sins on her conscience, and she died 
after my absolution without its being made valid, she would prob- 
ably be lost. Who can know with certainty that she has not 



JURISDICTIO DUBIA 319 

sinned grievously subjectively, although she has really committed 
only trifling offences? I was bound to provide against this pos- 
sibility, even cunt incommodo proportionato malo illato vel ori- 
undo, as is stated in the paragraph " De supplendis defectibus 
in confessione commissis." In other words, if I could do so with- 
out great difficulty, I was to some extent bound to make it cer- 
tain that the penitent was in the state of grace. 

I proceeded to go through the whole theory regarding jurisdictio 
dubia, as far as I could remember the teaching of theologians. 

1. A titulus coloratus in conjunction with error communis makes 
absolution certainly valid. Have I a titulus coloratus? No; for 
in order to have it I should have to be a parish priest, or at least 
a priest in charge of souls in this diocese. 

2. Can I have a titulus existimatus, or is there at least an error 
communis with regard to me? No; for this would require the 
majority of the inhabitants of this town to believe that I had 
jurisdiction to hear confessions, whereas I am a complete stranger. 
Moreover, it is only probable that the Church applies jurisdic- 
tion in the case of a simple error communis, and hence the abso- 
lution could at best be only probable, and I have arrived at the 
same result as before. 

3. Does not Holy Communion restore to the state of grace a 
recipient, who communicates bona fide and cum attritione in spite 
of being in a state of grievous sin? My penitent intends to com- 
municate to-morrow, for the Superior told me that she had not yet 
fulfilled the Easter precept ; she has bona fides, and probably also 
attritio. But although with regard to Extreme Unction it is cer- 
tain that the recipient, having these dispositions, is restored to 
the state of grace, with regard to Holy Communion it is only 
probable; and so for a third time I arrived at the same result. 



320 THE CASUIST— VOL. IV. 

I considered it a duty to see that the absolution was made valid 
before my departure if I could devise a means of rendering it 
so. I kept in view the fact that my penitent, having probably 
made a proper confession, was not bound to confess her sins again 
before next Monday, when she was to be examined again by the 
doctors, and the real state of her health would be ascertained. 
Long before then I should be back at home, and it would not be 
possible for me to return to A. How could I now at once make 
sure that she was in the state of grace without any very great 
difficulty ? 

Two plans suggested themselves to me. I might induce her 
to make an act of perfect contrition, and to promise God to love 
Him above all things, and for love of Him to abhor all sin and 
avoid it in the future. 

Or, as there was no reason to fear a scandal, I might induce 
her by nodding her head, striking her breast, or giving some out- 
ward sign, to make a general confession to the old chaplain of 
the hospital, who was certainly able to give her absolution. 

The second plan appeared to me easier and safer than the first. 
At the same time I could instruct my penitent and show her 
plainly how she ought to make her confession to the chaplain, 
in case she was dangerously ill and no other priest could be ob- 
tained, so that he might be able to give her valid absolution. I 
knew that if the penitent gives no outward sign of self-accusation, 
absolution is not certainly, but only probably, valid. 

One more difficulty presented itself. Was it my duty to tell 
the woman that if she were quite well on the Monday she ought 
to confess again the sins of which she had accused herself? I 
found several reasons for at once setting aside this scruple, among 
others, that it would hardly be possible to make her understand 



JURISDICTIO DUBIA 321 

me, and that I could not suggest such a thing to her sine 
offensione. 

On reaching home my first business was naturally to look in 
my books of moral theology and find out whether I had done 
right. I discovered the principles that I had applied enunciated 
by Noldin (de sacramentis, ed. 8) and Genicot (Theol. mor. instit., 
ed. 5). 

1. Nemo tenetur confiteri per interpretem (Noldin, n. 270). 

2. Parochus probabiliter censendiis est tmiversaliter approbatiis 
ac proinde vocari potest a parocho alterius dioecesis ad audicndas 
confessiones (Genicot, II. n. 325; Noldin, n. 341 and 346). 

3. Probabilis est sententia posse sacerdotem non approbatum a 
venialibus valide absolvere (Noldin, n. 344). 

4. Si extrema unctio confertur infirmo qui putatur esse in peri- 
culo mortis, reipsa aiitem non est, invalidum est sacramentum. — 
In dubio {positivo), num infirmitas sit periculosa, dari potest ex- 
trema unctio, sed sub conditione (si capax es), ne frustretur sacra- 
menti effectus (Noldin, n. 458). Atqui idem dicendum de abso- 
lutione infirmo data absque jurisdictione. 

5. Certum est ecclesiam sup pier e jurisdictionem in err ore com- 
muni cum titulo colorato (Noldin, n. 355, i). 

6. Probabile est ecclesiam supplere jurisdictionem in solo errore 
communi sine titulo colorato (Noldin, n. 355, 3). 

7. Qui ad sacramentum vivorum accedit, reus peccati gravis, 
quod bona fide existimat contritione perfecta vel sacramento poeni- 
tentiae deletum esse, valde verisimiliter veniam obtinet per con- 
tritionem qiiam Dens concessurus est ex congruitate (Genicot, II. 
n. 130, IV). 

8. Nulla apparet necessitas manendi poenitentem (qui dubie 
tantum absolutus est), ut postea confessario, qui certa jurisdictione 



322 TEE CASUIST— VOL. IV. 

instructus est; eadem peccata exponat, quia ohligationi ea con- 
fitendi probabiliter jam satisf actum est (Noldin, n. 358). 

9. Defectus circa valorem sacramenti commissus reparandus est 
cum incommodo proportionate malo illato poenitenti (Noldin, 
n. 417; Genicot, n. 376, i). 

I subsequently told a professor of moral theology all my diffi- 
culties connected with this case and the manner in which I had 
tried to solve them. He thought that I had done right, and went 
so far as to praise my knowledge of moral theology, saying that 
not every one would have possessed as much. I replied that in 
times of urgent need our memory is roused to unusual activity, 
and I had studied in my youth under an excellent professor, — 
he is now dead, — who understood the art of bringing the princi- 
ples of moral theology before us in so plain and convincing a 
manner that they were deeply impressed on our minds. Of course 
since then I have read up my moral theology more than once, 
and at the present time I refer chiefly to Genicot and Noldin, 
though I do not neglect Goepfert, Koch and others. 

This was the story told by my friend the chaplain. It would 
be well if all priests could give evidence of possessing as much 
theological knowledge as he did. — Dr. G. Kieffer. 



LXXXIII. DISPENSATION FROM THE OBLIGATION 

TO COMMUNICATE FASTING 

Anna is an invalid, subject to violent attacks of coughing, with 
a tendency to vomit ; she has suffered from this ailment for a 
long time and finds that nothing relieves it but the use of a cer- 
tain medicine. It is a great grief to her that she is thus de- 
prived of Holy Communion, which she would wish to receive 
daily. She has read in some religious paper that, on December 7, 
1906, the Holy Father granted to sick people certain mitigations 
of the rule that Holy Communion must be received fasting. Ac- 
cordingly she asks her confessor whether, in virtue of this decree, 
she may communicate after taking her medicine, and, if not, 
whether it would not be possible for her to obtain permission 
to do so. 

What answer ought to be given? 

The first question must be answered in the negative, for Anna 
is able to go out, and the concessions were made only for sick 
people, who, though they may not be in danger of death, have 
already been laid up (decumbunt) for a month, or, according to 
the declaration of March 6, 1907, are able to get up only for a 
few hours daily " in lecto decumbere non possunt aut ex eo ali- 
quibiis horis diei siirgere queunt." These concessions, moreover, 
do not apply to daily Communion but to Communion twice in 
the month, or, in pious households where the Blessed Sacrament 



324 THE CASUIST— VOL. IV. 

is reserved or where Mass may be said in a private chapel, to 
Communion twice in the week, both de confessarii consilio. 

With regard to the second question, the following course may 
be suggested to Anna. 

1. Let her address a petition to the Holy Father that her Con- 
fessor may write out in her name. It may run as follows : 

Beatissime Pater! N. N. dioecesis N. quamvis non decumhat, 
ipsi tamen causa male affectae valetiidinis moraliter impossibile 
est ohservare jejunium naturale ante Communionem praescrip- 
tum. Ideo ad Sanctitatis Vestrae pedes provoluta suppliciter petit 
facidtatem smnendi aliquid per modum potus, antequam quotidie 
vel frequenter ad S. Communionem recipiendam accedat. 

Loco N. die . . . Pro oratrice N. N. confessarius N. N. 

2. The petition must be sent to the Sacra Congr. de Sacramentis 
through the Bishop of the diocese and be recommended by him. 
For this reason the confessor should despatch it to the ordinary, 
and send with it a note, stating that he can vouch for the truth 
of the reasons that it contains for appealing to the Holy Father. 

3. The Sacra Congr. is in the habit of dealing with such peti- 
tions by authorizing the Bishop to allow the petitioner to make 
a definite number of Communions in the week : " Sacra Cong, de 
disciplina Sacramentorum vigore facultatum sibi a Ssmo Dno nostra 
Pio PP. X. tributarum, attentis expositis benigne committit Or- 
dinario N., ut pro suo arbitrio et conscientia oratrici veniam largia- 
tur aliquid sumendi per modum potus ante Sanctissimam Eucha- 
risiicam Communionem quater in hebdomada, durante tamen male 
affecta valetudine, de consilio confessarii et remoto scandalo." 

4. The ordinary then forwards the document relating to the 
dispensation, that he is now authorized to give, to the petitioner 
through her confessor. It remains then for the latter to explain 



DISPENSATION FROM THE OBLIGATION 



325 



to his penitent the concession granted her by the Holy Father, 
that she may understand what is permissible for her to do, as 
long as she continues in the same state of health. At the same 
time a note is added, stating what the cost of the proceedings has 
been. — Johann Schwienbacher, C.SS.R. 



LXXXIV. CAN EVERY JEW BE BAPTIZED? 

Israel applied to Titus, the Catholic priest at N., for holy bap- 
tism, and began to receive instruction. His motives were not 
altogether very good, but Titus hoped to improve them and took 
much pains. Israel had already announced his intention to aban- 
don Judaism, and this was to his credit for the Jewish community 
at N. publishes the name of every apostate from its ranks in the 
daily papers. 

When the priest applied to the Bishop for leave to baptize 
Israel, it was noticed from his marriage certificate that his wife 
had been married before, and there was no indication of her 
having been a widow. The Bishop asked for particulars, and 
Israel acknowledged that the woman to whom he was married 
according to the civil and Mosaic law, had divorced her first 
husband, who was a Jew. Israel's marriage was therefore in- 
valid in the sight of the Church, propter impedimentum ligaminis, 
and he has been living in (hitherto material) adultery. Let us 
call his wife Lydia and her first husband Solomon. The mar- 
riage of these two persons was valid. But Israel's baptism would 
have been possible only if the marriage between Solomon and 
Lydia had been invalid, or if it had been ratum and not consum- 
matum, — in which case the Pope could separate them, — or if 
Solomon were dead and Lydia really a widow. One more pos- 
sibility existed. — Lydia might be baptized and then communicate 
with Solomon through the Bishop's court. If he answered both 
the questions asked him inl the negative, and said : " I will not be 

326 



CAN EVERY JEW BE BAPTIZED ? 327 

baptized, and I will not live with the Christian Lydia," then 
Israel could be baptized and married to the already baptized 
Lydia. 

In the case before us Lydia refused at first to be baptized, 
but afterwards she consented, although she would not announce 
her abandonment of Judaism publicly. She was afraid that 
her mother would disinherit her, although she could not have 
been totally disinherited, but would have received the share of 
her mother's property to which she was legally entitled. After 
considering the matter, the Bishop did not allow her to be bap- 
tized without making any public announcement; for after her 
baptism it would have been necessary to communicate with Solo- 
mon, who would- certainly have revenged himself by informing 
Lydia's mother that her daughter had become a Christian. Con- 
sequently Israel could not be baptized. He and Lydia already 
had children, and so they could not be advised to separate from 
bed and board, or to apply to a civil court for a separation. If 
he and Lydia had been willing to renounce what they hoped to 
inherit from her mother, his baptism would have been possible, 
for in that case Lydia would have published her renunciation 
of Judaism, and have been baptized, and, after Solomon had 
been communicated with, she might have been properly married 
to Israel, who would also have been baptized. 

If anyone cares more for an inheritance than for God he is 
unworthy of God's grace. What advantage is it to Israel if he 
gains the whole world and suffers the loss of his own soul? 
Christianity requires us to love God more than money and worldly 
possessions. 

It behoves us to be careful about baptizing Jews. — Karl Krasa. 



LXXXV. BAPTISM OF CHILDREN, THE 
OFFSPRING OF CIVIL MARRIAGES 

A Jew, named Israel, married Sempronia, who was the child 
of a mixed marriage. She had been baptized a Catholic, but 
practised no religion at all. They were married before the regis- 
trar. At the birth of their first child, a girl, they both wished 
her to receive Catholic baptism. The priest, being aware that 
this was not always granted in similar cases, went to see them, 
and tried to induce them to promise that all the children who 
might subsequently be born should be baptized and brought up 
as Catholics, for if two persons after contracting a civil marriage 
give this pledge, it is possible to obtain a dispensation from the 
law prohibiting marriage between a baptized and an unbaptized 
person. The Jew Israel refused to be baptized himself, and he 
would not consent to make any promise, saying that the eldest 
son at least must be a Jew, so as to be able to recite the cus- 
tomary prayers when he himself died and on the anniversary of 
his death. 

If Israel had made the promise a dispensation ab impedimento 
disparitatis cultus could have been obtained, and the ecclesiastical 
marriage performed sub passiva assistentia. Sempronia might 
have begun to practise her religion again, and the marriage be- 
tween Jew and Christian would have been valid before the law 
and the Church. It would have been a mixed marriage, in which 
all the children were to be brought up as Catholics. 

Israel would agree to nothing, and Sempronia, who had prac- 
328 



BAPTISM OF CHILDREN 329 

tised no religion for sixteen years, accepted with complete in- 
difference the Bishop's decision that the child could not receive 
Catholic baptism, and it remained unbaptized; it was most un- 
likely that it would have been brought up as a Catholic. Only 
three years before Sempronia had been attending lessons on Chris- 
tian doctrine at school, but the fact that she selected a Jewess 
to act as godmother reveals her state of mind. It was only when 
the priest pointed out to her the impossibility of having a Jewish 
godmother that she chose a Catholic, but one who never sent 
her own child to Mass on Sundays. 

The end of the matter was that the Catholic godmother took 
the child to be baptized in the Lutheran Church. Thus the father 
was a Jew, the mother had no religion and the child was a 
Protestant! Such are the results of the teaching of the present 
day! — Karl Krasa. 



LXXXVI. PROTESTANTS AND THE COMMAND- 
MENTS OF THE CHURCH 

Justinian, a Catholic, has a Protestant servant and believes that 
he may provide meat for him on Friday, as, being a Protestant, 
he is not bound by the Catholic law of abstinence. 

Justinian is, however, in the wrong. 

The law of abstinence is a human law binding upon all who 
are the subjects of the lawgiver and have attained to the use of 
reason. Now all persons validly baptized belong to the Catholic 
Church and so are bound by her laws. There is, therefore, no 
doubt that Protestants are strictly called upon to observe the 
Catholic law of abstinence. 

According to the teaching of theologians (cf. Miiller, ed. 9, I. 
§ 53, n. 5; Noldin, ed. 7, I. n. 143; Lehmkuhl, ed. 11, I. n. 228), 
the Church does not impose rules laid down for the personal 
sanctification of men upon Protestants, ne augeantur peccata; 
they regard themselves, generally, bona fide, as free from the 
commandments of the Catholic Church; they violate them, it is 
true, when they disregard them, but they commit no sin; their 
action is bad, a peccatum materiale, but not evil, not a peccatum 
formale. 

With regard to the laws of the Church laid down for the 
maintenance of public order, as e. g., in those relating to impedi- 
ments to marriage, Protestants are obliged to conform to the 
decisions of the Catholic marriage law. This point should be 

330 



PROTESTANTS AND TEE COMMANDMENTS 331 

borne in mind when any question arises as to the vahdity of a 
Protestant marriage. 

A Protestant does not sin formally by eating meat on Friday, 
but his action, viewed from the Catholic standpoint, is bad, and 
therefore no Catholic should encourage him to do so. Justinian 
ought not to give his Protestant servants meat on Friday, al- 
though there might be a reason for his giving meat to them rather 
than to Catholic servants. The same remark applies to all the 
laws of the Church. A good Catholic ought in such cases to 
display his Catholic convictions, and, by setting a good example 
to his non-Catholic servants, do his best to bring them to the 
true faith. 



LXXXVII. CREMATION 

I. In a town where the subject of cremation is frequently- 
discussed even amongst Catholics, the priest regarded it as his 
duty to protest from the pulpit against this pagan practise. He 
overthrew the arguments brought forward in support of it and 
showed that, according to genuine Catholic opinion, the church- 
yard ought to continue to be the resting-place of those Christians 
who have died in the faith. He explained that Catholic instincts 
condemned cremation as an abominable abuse (Acta s. sed., vol. 
XIX. p. 46), and added: "How utterly the Church detests the 
pagan practise of cremation may be seen from the fact that she 
excommunicates such as are members of any association that aims 
at promoting it." 

The priest was making a mistake when he uttered the last 
sentence. A member of an association for promoting cremation 
incurs the excommunicatio latae sententiae Romano Pontifici sim- 
pliciter reservata only if the association is one of freemasons, 

A question having been asked whether it were permissible to 
join any association promoting cremation, the S. Congregation of 
the Inquisition replied on May 19, 1886: "Negative, et si agatur 
de societatihus massonicae sectae filiabus, incurri poenas contra 
has latas." 

II. Jobn, an assistant priest, was summoned to give the last 
Sacraments to a dying man. John was aware that the man was 
not a freemason, but that he had left instructions in his will for 
his body to be cremated, 

332 



CREMATION 333 

In his confession the dying man did not refer to this matter 
at all ; John also said nothing-, but gave him absolution, the Viati- 
cum, etc. John acted quite rightly. If the dying man had con- 
sulted him, or accused himself of what he had done, things would 
have been different, but, as it was, the penitent was bona fide 
quoad liceitatem crevnationis, and John, being afraid that an ad- 
monition on his part would do no good, said nothing. " Si moniti 
renuant," a priest is bound to refuse absolution. " Ut vero fiat 
aut omittattir monitio, serventur regulae a probatis auctoribus 
traditae, habita praesertim ratione scandali vitandi" {Atialecta 
eccles., vol. III. 99). — Prof. Gspann. 



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